Page:Federal Reporter, 1st Series, Volume 4.djvu/149

 BEADING V. T. & P. ET. CO. 135 �organîzation of this railroad was acceptable to the defend- ants, and that so he was entitled to recover; and, secondly, the ground that no matter how he performed his contiact these matters were subsequently arrangea between the parties, and a promise had been made to pay the ascertained balance of |6,000. As to the above grounds I was unable on the trial to see how the jury could find for the plaintiff. As to the first ground, the plaintiff was permitted to go into that, although under his declaration this was perhaps a mere mat- ter of inducement, He was permitted, however, to show, if he could, performance of the contract. Now, it must be ad- mitted that there was no actual performance of the contract proven. Taking ail the evidence, I thinkthe weight of it was against the plaintiff, and so presented it to the jury. �On the second point, as to the subsequent arrangement between the parties, the testimony of the plaintiff was not direct. He did not swear that there was an actual ascertain- ment of this balance. He merely says he understood it so. He does not testify to any unqualified promise. Under these circumstances, a verdict in favor of the defendants would have been satisfactory to the court. Now, the jury erro- neously have found a verdict for a sum less than the plaintiff would have been entitled to recover if his case had been made out by satisfactory proof. But this is not prejudieial to the plaintiff. It does not do him any wrong. He bas no right to complain. We do not sit here to correct formai errors made by the jury that do not hurt any one. The par- ties who are injured by this verdict are the defendants, not the plaintiff. But the defendants do not move for a new trial. The jury might have found a verdict generally for the defendants, but because the jury have given the plaintiff what he is not entitled to, it certainly does not lie in the mouth of the plaintiff to allege any wrong, nor is it the duty of the court to set aside the verdict. �Motion refused. ����