35 Tex. 577 | Tex. | 1872
In this case special issues were submitted to the jury, and they found the following facts, among others:
. 1. “ That the account as stated in plaintiffs’ petition wa’s admitted by Adkins to be true. The amount of said account is five thousand three hundred and seventeen and -jW dollars, with a credit of two thousand three hundred and seventy-five and dollars, proceeds of sale of cotton.
“Ware did, by reason of fraud or corruption, dispose of Adkins’ cotton at a price below the market. Adkins did lose by said fraud or corruption two thousand dollars.”
If Adkins lost two thousand dollars by fraud or corruption in the sale of his cotton, when did he lose it? Certainly there can be but one answer to this question; he lost it when the cotton was sold, and from that time he was entitled, by virtue of this recoupment of his damages, to an offset pro tanto against Ware & Sons’ account.
The attorneys have treated these special findings of the jury in the light of a verdict; they cannot properly be so regarded. If the practice of submitting special issues to the jury must be tolerated under our system, then we must learn to treat it as it is treated in courts of equity, where it can only properly belong. The Chancellor orders special issues to be found by a jury, from which findings he deduces his decree. In this case, after the jury had returned their findings upon the special issues, the court entered up a judgment, and that judgment is erroneous.
Adkins’ damages date from the sale of the cotton, and Ware & Sons’ account should be diminished, not only by the price the cotton sold for, but also by the two thousand dollars lost to Adkins by the sale.
Reformed and rendered.
