Ira S. Van Auken, Respondent, v. Edwin Clute, Appellant

Ira S. Van Auken, Respondent, v. Edwin Clute, Appellant. Judgment reversed and a new trial granted, with costs of this appeal to the appellant. [MAJORITY — Per Curiam:] Per Curiam: On the trial in the court below the defendant conceded an indebtedness to the plaintiff on account of the claim set out in the complaint for the sum of seventy-nine dollars and forty-five cents. The jury rendered a verdict for ninety-six dollars and eighty cents. We do not deem it necessary to enter into a discussion as to the evidence, but we have carefully considered it, and are unable to see how this verdict can be sustained. The plaintiff was entitled to a verdiet for the amount admitted by the defendant, but beyond that sum the finding of the jury is not founded upon any sufficient testimony, hut rather upon mere conjecture. In fact, the evidence did not sustain a verdict for the amount admitted, but of course such admission would have sustained a finding for that sum. We cannot properly direct a final judgment for the amount of damages for which the judgment should have been rendered, as upon a new trial the plaintiff may be able, by new evidence, to establish his entire claim. The difference between the amount of damages for which the judgment is entered and the sum admitted is small, but the objection to a larger recovery than seventy-nine dollars and forty-five cents was distinctly raised on the trial; hence we are of opinion that the judgment should be reversed, and a new trial granted, with costs of the appeal to the appellant. All concurred.