C. Jacobs & Co. v. J. J. Dooley & Co.

1 Idaho 41 | Idaho | 1866

Kelly, J.,

delivered, the opinion of the court,

McBbide, C. J., ancl SMITH, J., concurring.

This is an action upon a promissory note for the recovery of three hundred and thirty dollars and seventy-one cents. The defendants by their answer admit the execution of the note, but say'the same was not stamped with United States revenue stamps; and they further answer that the note was given upon closing up an account; that the account was made up'by plaintiffs in the absence of defendants’ books, and that there was a mistake in settling said account in defendants’ favor in the sum of two hundred and forty dollars, and ask to be relieved of said mistake, and that the plaintiffs may have judgment for ninety dollars and seventy-one cents only.

The plaintiffs in their replication deny that there was any mistake in settling said account in defendants’ favor, but say that such mistake was in favor of plaintiffs in the sum of one hundred dollars, for which they ask nothing. They also state that said note was given to their agent, James Mullany, who immediately placed a revenue stamp thereon.

The statement in this case showed that the book accounts of each of the parties was given in evidence to the jury; and the plaintiffs claimed that their evidence showed the mistake to be in their favor in the sum of one hundred dollars more than they had claimed in the complaint. The defendants claimed on their part that the evidence showed the mistake to be in favor of the defendants in the sum of two hundred and ninety-three dollars, whereupon the court ordered the plaintiffs to amend their complaint by adding one hundred dollars; and the defendants should amend their ansSver by adding two hundred and ninety-three dollars, to all of which there were no exceptions taken by defendants. The jury upon the evidence found for the plaintiffs in the sum of four hundred and thirty dollars and seventy-one cents.

The defendants seek to reverse the verdict in this case on the ground of misconduct of the jury, and that the evidence is not sufficient to support the verdict. The fact that the note was stamped and the stamp canceled immediately after its receipt by plaintiffs’ agent, Mullany, and before its delivery to plaintiffs, is conceded by defendants’ counsel, and of course disposes of tliafc question. Tbe affidavit of one of tbe jurors is tbe only evidence relied on to show misconduct of tbe jury: The affidavit is a very extraordinary one, and if taken as true shows that tbe juror was under duress by the other jurors in making-up bis verdict. Tbe jury while deliberating upon their verdict were under tbe charge of an officer and within hearing of tbe court. No complaint was made to tbe officer,'and when tbe jury rendered their verdict no such facts were intimated to tbe court. Had tbe juror claimed protection from tbe officer, or made known bis grievances to tbe court when be came in to render bis verdict/ be would certainly have been protected. It is hardly possible to suppose that a jury guarded by an officer, and within tbe bearing of tbe court, could place any one of their number under such great fear as is pretended by this juror, without bis making it known to tbe officer, or having tbe courage to explain bis verdict to tbe court at tbe time of rendering it. Tbe weight of authorities does not permit jurors to impeach their own verdict. There was no reason for this juror’s being under duress or any fear of barm while deliberating upon bis verdict, and tbe court below very properly disregarded bis affidavit upon a motion for a new trial. Tbe account books of both plaintiffs and defendants were submitted and passed upon by tbe jury, together with tbe evidence of one of tbe defendants in regard to their entries and manner of keeping accounts. Tbe jury passed upon tbe original indebtedness as they bad a right to do, and no exceptions were taken by defendants. They found tbe plaintiffs’ account to be correct, and disregarded entries made in defendants’ cashbook, of which the defendants complain.

If tbe defendants were unable to impress tbe jury with the correctness of their own books, this court will not disturb tbe verdict. Tbe court below ordered the complaint and answer amended in accordance with tbe testimony submitted. ■ Tbe defendants had the full benefit of these amendments, and took no exceptions, and they were so considered for the purposes of the judgment which tbe jury might render.

Tbe judgment of tbe court below must be affirmed.