Citations
- 37 Ohio St. 434
Full opinion text
Johnson, J.
The decision to which this motion relates will be found reported in the present volume, ante, p. 321. Por . a statement of the pleadings, reference is made to the same case, reported in 22 Ohio St. 451.
It appears, that the action below was to recover $75,000 damages for an alleged breach of contract, by which the plaintiff in error was to receive and dock at Cleveland, and to carry on its railroad from thence to Youngstown, Lake Superior ore, at an agreed rate per ton, for. a term of years. The specific breach alleged as a basis for damages, is, that after performing the contract for part of the term, the defendant refused longer to do so, and thereafter exacted, and plaintiff was compelled to pay, large sums in excess of the agreed rate, to the plaintiff’s damage $75,000. This suit was brought in 1868, nearly two. years before the term the contract had to run, had expired. Issue was joined and a final judgment thereon was before this court, and was reversed in Himrod Furnace Co. v. C. & M. R. R. Co., 22 Ohio St. 451. The case was remanded for a new trial. This resulted in a verdict for the plaintiff, assessing his damages at $59,024.22.
A motion for a new trial, based on the following grounds, was filed:
“1. The court erred in admitting evidence offered by plaintiff, to which defendant objected and excepted.
“2. In excluding and ruling-out evidence offered by the. defendant.
“3. In the charge and instructions given to the jury, and in refusing to charge and instruct the jury as requested by defendant.
“4. The damages assessed are unreasonable and excessive.
“ 5. The verdict is against and contrary to law.
“ 6. The verdict is not sustained by sufficient evidence.
“ 7. The verdict should have been for defendant instead of ' the plaintiff.”
The motion was overruled and a bill of exceptions taken, setting out the evidence, and excepting to the charges of the court, and to its refusals to charge.
To reverse the judgment on this verdict, the ease was reserved for decision in this court.
Numerous errors were assigned for such reversal. After full argument and patient consideration, none of them was found to be well taken, except that part of said verdict was unsupported by the law. See case, ante, page 321.
Thereupon the court, on an examination of the evidence, computed the amount of this erroneous part of the verdict, put the defendant in error to his election, either to have the whole judgment reversed, or to remit the amount so found to be erroneous. The remittitur of this amount being filed, the judgment, so modified, was then affirmed. The journal entry, however, only shows the remittitur and the affirmance of the judgment as modified.
The record shows that the damages proved were limited to over-charges actually paid for the services provided for in the contract before the commencement of the action, and that all evidence touching damages for the remainder of the term was excluded.
These items of over-charge may be classified as follows: 1st, amount paid to plaintiff in error for transportation m excess of the agreed rate; 2d, amounts paid to plaintiff in error for dockage, <£• The verdict is erroneous in part, from a cause not affecting their action as to the other part. The error is easily ascertainable by looking into the evidence. By affirming the judgment, as modified by the remittitur, it is reduced to the proper amount legally found by the jury.
That the court has the power to do this, in cases like the present, is too firmly settled to be now disturbed. Marietta Iron Works v. Lorrimer, 25 Ohio St. 621; Smith v. Exchange Bank, 26 Ohio St. 141; Douglas v. Day, 28 Ohio St. 175; Lear v. McCullough, 17 Ohio St. 464; Sibila v. Bahney, 34 Ohio St. 399; Averill v. Verner, 22 Ohio St. 372; Doolittle v. McCullough, 7 Ohio St. 299; Durrell v. Boyd, 9 Ohio St. 72; Pendleton St. R. R., 22 Ohio St. 466; Saymin v. Phillips, 15 Ohio St. 218.
2. Objection is also made to this form of proceeding by reason of its supposed effect on the judgment lien, and on the liability of sureties on the supersedeas bond. This question is not now before us, and we need express no opinion until the question properly arises. A like objection is made because the judgment as modified bears interest from the date of its rendition, and thus it is said interest is compounded. Such is always the case when the judgment is reversed in part and affirmed in part; the part affirmed bears interest from the day it was rendered.
3. Finally it is insisted that there are a number of questions assigned as error, that were left undisposed of.
This makes it necessary to repeat what has already been stated in the published opinion, before referred to, that after a careful consideration of all these questions no error was found, except as stated. Some of them were questions of fact, some were controlled by reported cases, and some were of minor importance, hence the opinion was limited to the single point reported.
Motion overruled.