Kuntz v. Peoples' Industrial Trading Corp.

Merrell, J. (dissenting):

The verdict of the jury awarding plaintiff one-third of the profits alleged to have been received by defendant on the sugar and underwear contracts is unsupported by the evidence. It does not appear that either of said transactions was through Lidval, either directly or indirectly. In fact, the evidence is quite to the contrary. As to plaintiff’s claim to share in the profit alleged to have been received by defendant on the sale of clothing, the evidence presented a fair question of fact, and we should not interfere with the verdict of the jury which resolved the same to that extent in plaintiff’s favor. The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the judgment as entered, including costs of the trial, to the sum of $1,751.13, in which event the judgment, as so modified, and the order appealed from should be affirmed, without costs.