Eames v. Haver

Citations

• 111 Cal. 401
• 43 P. 1120
• 1896 Cal. LEXIS 596

Syllabus

<p>Appeal — Order Granting New Trial — Breach op Contract to Ex= change Stock—Measure oe Damages—Error in Instructions — Remission oe Percentage oe Value—Conditional Reversal.—Upon appeal by the plaintiff from an order granting a new trial to the defendant, in an action for breach of a contract made as part consideration for the conveyance of land from plaintiff to defendant, by which defendant agreed to exchange stock in a corporation given as part of the purchase money for an equal number of shares of stock in another corporation, upon payment by plaintiff to the defendant of brokerage not exceeding five per cent of the latter stock, where the new trial was granted for error in instructions to the jury as to the measure of damages being the difference in value in the price of the stock, which ignored the percentage agreed to be paid by the plaintiff, such error may be corrected, upon offer of the appellant to remit the percentage upon the highest estimate of value given by witnesses for the defendant, of the stock withheld from the exchange, by requiring the defendant to accept the offer, and reversing the order on condition that the appellant remit the percentage aud pay the costs of appeal.</p> <p>Id.—Insufficiency of Evidence—Difference in Value of Stock—Admissions of Answer—Testimony of Defendant.—The order granting a new trial to the defendant in such action cannot be sustained on the ground of insufficiency of the evidence to justify the verdict as to the difference in value of the stock of the two corporations, where it appears by the admissions of the answer, taken in connection with the testimony for the defendant, that the difference in value was greater than the amount of the verdict of the jury.</p> <p>Id. — Offer to Exchange Pledged Stock — Waiver of Production— Harmless Obscurity in Instruction. —- An instruction to the jury that “the fact that the stock of plaintiff was pledged as security, has no bearing on the case, and if the jury find that the p