Conlin v. Emanuel Lewis Inv. Co.

THE COURT.

This is an appeal from the judgment, entered upon the verdict of a jury, against the defendant and in favor of the plaintiffs.

It appears from the evidence, and is not disputed by defendant, that the defendant entered into a contract in writing with Joseph Williams, whereby defendant agreed to sell to Williams

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lots 14 and 15 in block L of the Mission Street Land Company; that Emanuel Lewis, the president of the defendant company, took Williams to the property before the contract was signed, and pointed out to him what he supposed were lots 14 and 15, but which were actually lots 11 and 12. Williams went into possession of these lots, made improvements thereon, and paid a portion of the purchase price. Thereafter he assigned the contract to plaintiffs. Defendant consented to the assignment, and plaintiffs went into possession. Thereafter they paid to the defendant the balance of the purchase price in monthly installments, and received a deed to lots 14 and 15. Subsequently plaintiffs were notified by the Homestead Realty Company that they were in possession of lots 11 and 12 belonging to that company. Plaintiffs then moved their house and improvements to lots 14 and 15, and thus incurred the damages sought to be recovered in this action from the defendant. At no time prior to the date of the notification by the Homestead Realty Company did plaintiffs know or have cause to believe that they were located on the wrong lots.

No evidence was offered by the defendant, nor was any motion made for a new trial.

Plaintiff admits that the verdict is excessive in the sum of one hundred and sixty-five dollars, but it cannot be said from the mere fact that the verdict is excessive, because of the inclusion therein of improper items, that it was the result of passion and prejudice

(Adcock

v.

Oregon R. Co.,

45 Or. 173, [77 Pac. 78]). Nor can the judgment be reversed merely because it was rendered for an excessive amount where, as here, the party in whose favor the judgment was given consents to a modification thereof