Page:Federal Reporter, 1st Series, Volume 4.djvu/148

 184t FEDEBAIi BEFOBTEB. Beadinô V. Texas & Paoifio Eailwat Co.* (Oiretiit Oomi, E- B. Penmylvania. October 26, 1880.) 1. New Triai.— Verdict fou Too Small an Amount— When not Set AsiDE. — When, in the opinion of the court, the verdict should liave been for the defendant, upon the evidence, they will not, upon the motion of plàintifl, set aaide a verdict in his favor because its amount was less than the evidence ahowed him to be eutitled to, if entitled to recover at ail. Motion for New Trial, This was an action of assumpsît. The declaration set forth an agreement by defendant to pay plaintiffs $10,000 for obtaining the consent of the bond holders of the Shreveport & Texas Eailway Company to a scheme of reorganization, and averred performance by plaintiff, and that subsequently defendants were satisfied with such performance, had paid plaintifif $4,000 on account, and had acknowledged a balance of $6,000 to be due. Plea, non-assumpsit, Plaintifif failed to prove, on the trial, performance of the contract on his part, but testified that defendants had waived the complete performance, and that they had paid him $4,000 on account, and acknowledged that a balance of $6,000 was due. This testimony was contradicted by defendant's wit- nesses. The jury found a verdict in favor of plaintifif for $1,000. Plaintifif alone moved for a new trial. W. Henry Smith, for plaintifif. George Biddle, for defendants. McKennan, C. J., (orally.). The plaintifif here has circum- scribed his case within very narrow limits. He has by his declaration bound himself to prove a promise between him- self and the defendants, by which the latter agreed, in con- sideration of whatever he did in performance of his contract, to pay him the balance he now claims. He has been per- mitted to present his case to the jury in a double aspect — First, that his performance of his contract to obtain the signature of these parties to a paper to provide for the re- ♦Ileported by Frank P. Pricliard, Esq.; of the Philadelphia bar.