1 Idaho 185 | Idaho | 1868
delivered the opinion of the court,
The plaintiff in his complaint demands judgment for the sum of four hundred and twenty dollars on a promissory note, of which he avers he is the owner and holder, and which it is declared was made and executed by the defendants. The only issue, as appears from the record presented to the jury, was fraud in the execution of the note; that it was executed by one having no authority, and under-circumstances which were a fraud upon the rights of the defendants making this answer, namely, Taylor and Andrews.
It is admitted by the pleadings that there was such a note as that set out in the complaint, and there was no issue
I cannot assent to the construction placed upon these sections by the appellants’ counsel; although it would probably be the better practice in such cases to require the jury to find the amount of the demand, yet this omission does not deprive the prevailing party of his right to have judgment for the sum due. It certainly could not have been the intention of the law-makers to absolutely require a jury to find in their verdict that a certain definite sum was due the plaintiff or the defendant, as the case might be, where there was no controversy as to the amount for which judgment should be given. If the court had instructed the jury to find the amount due, provided they found for the plaintiff on the issue of fraud, it could only have said to them, you will find the sum of four hundred and twenty dollars, for this is the amount admitted and about which there is no question. Hence, at most it is but matter of form, the omission of which will not vitiate the proceedings.
In the case of Williams v. Willis, 7 Abb. Pr. 90, the court says that “the facts that the work performed and
Under this authority there can be no question of the correctness of the judgment rendered in the case at bar. As already stated, the execution and ownership of the instrument upon which the action is based, as well as the amount due if a valid note, were all admitted by the pleadings, which admissions are as binding and effectual as if expressed in terms. These admitted facts, taken .with the verdict, in the language of Judge Brady, left nothing incomplete, and the court could have but one thing to do, that of ordering judgment for the party entitled under such admissions and the verdict, and for the amount prayed for on the note, as was done by the court in this case.
Another error assigned by the appellants is that the judgment is for “clean Boise Basin gold dust at sixteen dollars per ounce.” It is insisted that this is in contravention of the provisions of the act of congress of February 25, 1862, commonly called the legal tender act. This judgment was
As already intimated, the judgment can not be reversed; hence, the costs can not be taxed against the respondents. But as a modification of the judgment is necessary, there will be no damages allowed.
Judgment is affirmed, with direction to the court below to correct the same as indicated in this opinion, with costs of appeal to the respondents.