Electric Improvement Co. v. San Jose & Santa Clara Railroad

HAYNES, C. This action was brought by plaintiff to recover $1,196.59, alleged to be due from defendant under a contract for the construction and electrical equipment of a street railroad from San Jose to Santa Clara, and the further sum of $17,328.49 damages for an alleged refusal and neglect of the defendant to perform its part of said contract. The answer denied defendant’s alleged failure to perform its contract, and that anything was due plaintiff; and by way of counterclaim alleged that plaintiff quit and abandoned the contract, to defendant’s damage in the sum of $100,000. The cause was tried before a jury, which rendered the following verdict: “We, the jury in the above-entitled cause, find a verdict for the defendant for its costs. ’ ’ Judgment was entered upon the verdict in favor of the defendant for its costs in the sum of $273.50. Plaintiff took a bill of exceptions, and moved thereon for a new trial, which was denied, and appeals from the judgment and the order denying a new trial.

Appellant contends for a reversal upon two grounds:

1. That the verdict is void and insufficient to support the judgment, for the reason that it fails to specify the amount to be recovered. Section 626 of the Code of Civil Procedure provides: “When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a counterclaim for the recovery of money is established, exceeding the amount of the plaintiff’s claim as established, the jury must also find the amount of the recovery.” If the jury find nothing in favor of the plaintiff, and did not find in favor of the defendant upon its counterclaim an amount exceeding the amount established by the plaintiff, the verdict would necessarily be for the defendant, and the defendant, on such verdict, would be entitled to costs. In such case the jury could not specify the [620]amount of any recovery, for there was no recovery by either party. There is nothing in the record to indicate that a different verdict was intended by the jury, or that it was based upon any other ground. The addition of the words, “for its costs,” was harmless surplusage. The verdict, without this addition, would have given costs to the defendant, and hence the plaintiff was not prejudiced. Watson v. Damon, 54 Cal. 278, cited by appellant, is not in point. There the jury found for the plaintiff $2,250, with interest at ten per cent per annum from a given date, less the amount of notes of the value of $950, “with interest on said notes”; but neither the verdict nor the pleadings gave any basis for the computation of the interest on the notes. In Redmond v. Weismann, 77 Cal. 423, 20 Pac. 544, the verdict was: “We, the jury in the above-entitled action, find for the plaintiff.” In that case the amount of plaintiff’s claim stated in his complaint was not in controversy; the sole controversy being as to the liability of the defendant. This court refused to send it back for a new trial, judgment having been entered for the amount stated in the complaint.