116 Minn. 307 | Minn. | 1911
This action was in replevin to recover the possession or value of a stock of dry goods alleged to be unlawfully detained by defendant. The goods were taken from defendant’s possession on the writ. The case came on for trial before the court and a jury, and the ultimate question to be decided was whether plaintiff or defendant was entitled to the stock of goods. The facts developed at the trial, stated only with sufficient detail to indicate the issues, were as follows:
January 15, 1910, plaintiff sold to defendant the stock of dry goods in question, in exchange for thirty-four acres of land in Oregon. A bill of sale of the goods was executed- and delivered, as was a deed -of the land. The record title not being perfect, defendant executed and delivered to plaintiff a bond conditioned to perfect such title within thirty days, or in case he failed to do so it was agreed that defendant' might furnish a “good and sufficient” bond conditioned to- perfect such title within one year, “said bond to be subject to the approval of Mel Blied, and satisfactory to him.”
To secure the performance of the bond so executed and delivered
Defendant was unable to perfect the record title in thirty days, and on February 8, 1910, executed a bond conditioned to perfect such title within one year from January 15, 1910. This bond was executed by defendant and his wife, and was secured by a mortgage executed by them. Plaintiff refused to accept the bond, and a second one was on February 12, 1910, executed by defendant, his wife, and one Emily J. Barnard, conditioned to perfect such title within one year from January 15, 1910. This bond was refused by plaintiff, and shortly thereafter this action was brought.
It is clear that the questions before the trial court and jury for decision were these: (1) Was the title to the Oregon land in fact perfected at the time of the trial ? (2) Did the giving of the bond February 12, 1910, operate to discharge the chattel mortgage? (3) If both of the above questions were answered in the negative, and the chattel mortgage was in force, did plaintiff have reasonable grounds for believing himself insecure?
The trial court, instead of deciding the questions of law and instructing the jury in accordance with its decision, directed the jury to answer the question, “Did the plaintiff have reasonable grounds to believe himself insecure at the time of the commencement of this action ?” and not to return a general verdict.
1. That plaintiff was entitled to a jury trial and to a general verdict is beyond doubt. It was ah action at law, in replevin, and it is immaterial that questions of law, as well as questions of fact, were involved. It was the duty of the court to decide the law questions
It is the law, we think, that plaintiff was not entitled to refuse the bond without cause or arbitrarily, notwithstanding that it was agreed that such bond was to be subject to the approval of plaintiff and' satisfactory to him. 'Plaintiff’s theory evidently was that he was not obliged to accept a bond at all, or at least that he might refuse to accept any bond tendered, whether it was actually sufficient or not. But clearly this theory is wrong. Plaintiff’s refusal must be in good faith, and upon some ground other than mere sentiment or suspicion.
We think that this question was on the evidence one of fact, and that it does not conclusively appear either that the refusal was arbitrary or that it was based upon sufficient grounds. It follows that the trial court should have decided the question whether defendant had perfected the title before charging the jury, and, in case it decided such question in plaintiff’s favor, should have submitted the case to the jury on the other questions, under proper instructions, for a general verdict.
2. Did plaintiff waive his right to a general verdict, and consent, either expressly or by implication, to the jury deciding only the question of “insecurity,” and the subsequent trial and determination of the other issues by the court? The right to a jury trial of all or part of the issues may be waived, and the statutory method of waiving such right is not exclusive. If plaintiff’s attorney consented to the course adopted, it was a waiver of plaintiff’s right to a jury trial. But the converse of this proposition is undeniably true. If plaintiff’s attorney did not, either expressly or by implication, consent to a reservation of certain issues and their subsequent trial and deci
It was evidently plaintiff’s position on the trial that he was entitled to a verdict, if plaintiff had reasonable grounds for believing himself insecure; that is, that the other questions must be determined in his favor as a matter of law. ■ It was the position of defendant’s attorneys that the only issue on trial at this time was the question of “insecurity,” and that the other issues would be tried and determined by the court at some future time, on further evidence to be taken.
We have considered very carefully the record of the proceedings on the trial and the subsequent proceedings, as shown by both the original and supplemental return, and reach the conclusion that plaintiff’s attorney at no time consented to the course adopted. It is clainied that this course was agreed to at an evening meeting between counsel and the court. The reporter’s transcript státes that it was then “agreed and understood between them that the only issue in the case to be submitted to the jury in the court’s charge was whether or not plaintiff had grounds to believe himself insecure.” This, we think, falls short of being- an agreement to take a special finding of the jury on that question, and to reserve the case for future trial and decision by the court. It is not unusual for the trial court and counsel during the course of a jury trial to agree upon the issues to be submitted to the jury ; but such an agreement alone does not contemplate dispensing with a general verdict and submission of the cause to the court for its decision, either then or at a future time.
That the agreement made was not so interpreted by either the trial court or by plaintiff’s attorney appears quite clearly from the proceedings in court after the agreement was made. When the testimony was about completed, defendant’s counsel asked the court to rule that defendant was not precluded from offering evidence as to the title at a future time before the court. The court so ruled, and plaintiff’s counsel objected. Plaintiff moved for a directed verdict in his favor for the return of the goods that were still in defendant’s possession. This motion was denied, and the court proceeded to charge' the jury.
It is very clear that the trial court had no idea that a general verdict was not to be returned until counsel for defendant interrupted, objecting to a general verdict, and insisting that only the special question should be submitted, to be answered by “yes,” or “no.” The court then submitted the special question! Plaintiff’s attorney promptly requested a general verdict, and objected to the submission of the special question; but this request was denied and objection overruled.
When the jury retired, a stay of forty days was ordered as to all proceedings on the’verdict. Plaintiff’s counsel then left for Minneapolis, and were not present in court when the jury returned the answer “Yes” to the special question submitted. When this answer was returned, and in the absence of plaintiff’s counsel, an order reserving “the cause for further consideration by the court during the term” was entered in the court minutes. Thereafter defendant’s counsel wrote to plaintiff’s attorneys that the court would take up the trial of the case at the conclusion of a case then on trial; but plaintiff’s attorneys were not present at the time named or thereafter, and the trial court heard further evidence offered by defendant, and subsquently made its findings on the whole case in defendant’s favor.
Our conclusion is that plaintiff did not waive his right to a trial
3. We are unable to hold that it conclusively appeared from the evidence, as it stood when the jury retired, that the title had been, perfected, or that plaintiff had no right to the security of the chattel mortgage. We cannot decide the case on the evidence received in the absence of plaintiff’s attorneys. In view of the feeling we have-that the misunderstanding between counsel and the trial court that, resulted in -this unfortunate situation was in some part due to an erroneous conception by plaintiff’s attorneys of the questions involved, and their failure to lend their aid to clear up the difficulties,, either at or after the trial, and especially in view of the wholly unwarranted aspersions in the brief on the conduct of the trial court and its motives, we feel constrained to direct that appellant, be not allowed statutory costs or disbursements for printing the offending brief.
Order reversed, and new trial granted.