116 N.W. 339 | N.D. | 1908
This is an action in claim and delivery under which the possession of a soda fountain and attachments is claimed. The plaintiff claims in its complaint to be the owner thereof. The fountain and fixtures were sold to the defendant -by one Putnam, who was the agent of the plaintiff. The written contract or order for the property was in the name of one Tufts, and each of the 33 notes was given to said Tufts as payee, and the name of the plaintiff is not given or mentioned in any of the papers as originally executed. The defendant gave said Tufts 33 promissory notes on the sale, and they and the contract provided that the title to all the property should remain in Tufts until full payment of the purchase price, and these notes and the contract gave him the right to take possession of the property on default in the payment of any of the notes. The answer was a general denial. A jury was impaneled, and at the close of plaintiff’s testimony the court directed a verdict for the defendant. A motion for a new trial was made, based on a notice of intention to move for a new trial and a settled statement of the case, and denied. From the order denying a new trial, the plaintiff has appealed. ■
The error principally relied on for a reversal of the order is the direction of a verdict for the defendant. The ground urged before
It is unnecessary to pass upon the question argued by the appellant that the objection cannot be raised on a motion for a directed verdict, but should have been raised by special demurrer by-answer. This question was objected to as calling for a conclusion-of the witness: “Did you ever get a soda fountain from the American Soda Fountain Company?” The objection was overruled. We think the objection should have been sustained. The-answer -called for the witness’ conclusion as to whether the agent Putnam was plaintiff’s agent or Tuft’s agent, which is a question of law if the facts are undisputed, and a question for the jury under proper instructions if the facts are in dispute. The fact that Tufts;
It is claimed that no verdict was rendered by the jury, and that that omission is ground for a new trial. The trial court granted the motion to direct a verdict and to dismiss the action, but the record is silent as to whether a verdict was called for or returned by the jury. The record does not affirmatively show that no verdict was returned, and no objection was made at the time based on the fact that the jury should be required to return a formal verdict at the direction of the court. The omission was first called to the court’s attention on a motion for a new trial. We think the objection comes too late. Conceding, without deciding, that the statutory requirement that verdict shall be returned in writing is mandatory, no possible prejudice could result to the plaintiff by the omission, and we are not inclined to consider an objection so technical until it is properly raised. No cases are cited by the appellant, but it has been decided that the better practice is to have formal verdicts in writing returned in such cases, but that the omission is not fatal to the proceedings, nor prejudicially erroneous. Moore et al. v. Petty et al., 135 Fed. 668, 68 C. C. A. 306; Cahill v. Ry. Co., 74 Fed. 285, 20 C. C. A. 184.
For the error in directing a verdict for the defendant, the order is reversed, a new trial granted, and the cause remanded for further proceedings.
Note. — As to who is real party in interest within meaning of statutes defining parties by whom action must be brought, see note to Stewart v. Price, (Kan.) 64 L. R. A. 581.