Harrison v. Peabody

Admissions of a Party as Evidence against Him.—While the admissions of a plaintiff, as to the just amount of his demand in suit, are not conclusive upon him, yet they.are admissible in evidence, and when made under circumstances free of all suspicion of having been prompted by a desire to effect a compromise, or otherwise to avoid or "become freed of a controversy concerning his demand, they may be justly regarded by Court and jury as of controlling weight, unless some satisfactory explanation is made by which such effect is counteracted. Hew Trial Granted—When the Evidence is Conflicting.—Where, on appeal from an order of the Court below, granting a new trial, except upon condition of the acceptance, by the plaintiff, of a judgment for four hundred dollars, instead of eight hundred dollars, for which latter sum a jury had given a verdict, made upon the ground that the verdict was excessive in amount, and whore, on appeal from said order, it appeared that the evidence was conflicting to the extent of the difference between said two sums as to the amount of recovery to which plaintiff was entitled, and where the evidence tending to establish the less sum to have been the just measure of recovery was at least entitled to as much consideration as the residue: held, that this was no abuse of discretion by tho Court below, and the order should he affirmed.

Appeal from the District Court, Fourth Judicial District, City and County of San Francisco. This was an action brought to recover for the use of certain pumps, belonging to plaintiff, in and about the defendants’ ship Bengal. The complaint alleged the value of said use to have been two hundred dollars per day, for eighteen days use. The answer denied all the allegations of the complaint, except the ownership of said ship by defendants, and the use of said pumps in and about said ship; but as special defense alleged that the said use of said pumps was upon the hiring and bailment of one Watts, who alone was responsible to plaintiff therefor; but further averred that the said use of said pumps was reasonably worth the sum of twenty-five dollars per day only. The trial was by the Court with a jury. The evidence touching the value of the use of the plaintiff’s pumps was conflicting; the conflict extending between the sum of two hundred and fifty dollars and the amount claimed by plaintiff. It appeared, on plaintiff’s testimony in his own behalf, that he had presented a bill for two hundred and fifty dollars and twenty-five cents for the use of said pumps, being the same for which this suit was brought, to DeWitt, Kittle & Co. The paymént was refused by DeWitt, Kittle & Co., when, and before this suit was commenced, he brought suit against the ship Bengal to recover three hundred dollars for the same cause of action. Ho statement was made explanatory of the discrepancy between these sums demanded and the sum of three thousand six hundred dollars, which latter sum, according to the evidence given by plaintiff, was the real value of the use of said pumps. The jury returned a verdict for plaintiff for the sum of eight hundred dollars. The defendants moved for a new trial, upon the ground, among others, that the verdict was not justified by the evidence and was excessive. The Court granted a new trial, except upon condition of the acceptance by plaintiff, within a time specified, of judgment for four hundred dollars, instead of eight hundred dollars, with costs. The plaintiff refused to accept said proffered judgment, and appealed to this Court from said order granting a new trial.