146 P. 922 | Ariz. | 1915
The foregoing statement discloses that this is an action in equity, and that, as is usual in such actions, many issues and questions of fact are necessarily involved. The legislature, whether wisely or unwisely, it is not for us to say, in the revision of our laws affecting verdicts of juries, inserted a new statute applicable to “actions where equitable relief is sought” which materially changes the procedure in the trial of that kind of an action. It appears in the Civil Code as paragraph 542, and reads as follows:
“In all actions where equitable relief is sought the court .shall, if a jury be demanded by either party, submit to the jury all controverted questions of fact. Interrogatories shall be framed and approved by the court presenting such questions, and each interrogatory shall be confined to a single question of fact and shall be so framed as to be answered by ‘Yes’ or ‘No,’ and shall be so answered where ‘Yes’ or ‘No’ is possible. In every such case the verdict shall be binding upon
The evident purpose of the legislature was to transfer from the court to the jury the power and duty of finding all controverted questions of fact in equity cases as fully and completely as in actions at law. In other words, the conscience of the jury is substituted for that of the chancellor in determining the merits of a cause in so far as the controverted facts are .concerned. The statute is mandatory that if a jury is demanded, the court shall submit “all controverted questions of f&ct” to it in the form of interrogatories, and that each interrogatory shall be confined to a single question of fact. As to whether the phrase “all controverted questions of fact” is broad-enough to include both evidentiary or subordinate facts and the principal or ultimate facts in issue or not we do not feel called upon in this case to decide. It is enough to say that in our opinion the two interrogatories submitted to the jury fall far short of the requirements of the statute, even if it should be held that only thé ultimate facts put in issue by the pleadings should be submitted to the jury.
The first question calls for a conclusion of law. It is, in effect, Did K. enter into a contract with B. at the time and place alleged in the complaint ? That would depend upon the substantive facts of their agreement. It is alleged that K. promised to do certain things and that B. promised to do certain things. The question should be, Did they promise to do those certain things ? An affirmative answer being had, it becomes a question of law as to whether the mutual promises constitute a contract or not. It is not for the jury to determine whether a contract was made or not, their duty being confined by the statute to finding the controverted facts of promises; one party insisting that such promises were made and the other denying that they were made. If made upon sufficient consideration, it follows as a conclusion of law that the contract was entered into. If not made, it follows as a conclusion of law that no contract was entered into.
Were it determined that the interrogatory was proper in form and calling for a conclusion of fact, still it would be bad as it is not sufficiently definite. The complaint sets forth two contracts, one of date 1892, made in New Jersey, and one of date June 14,1900, made in Arizona. The question is, Which
The other interrogatory is subject to a like criticism. It calls for a conclusion of law. It is true that the statute (paragraph 431, Civil Code) relieves the party “pleading the performanee of a condition precedent in a contract” from stating “the facts showing such performance,” and permits him’to state generally in his pleadings that he has duly performed all the conditions on his part, but if such allegation is controverted, he is required on the trial to establish the facts showing performance. One may, under this statute, plead a conclusion of law, but if it is controverted, he must introduce his evidence showing the “facts” of performance. Under the pleadings, Benedict was required to do several things on his part. What he did is a question of fact, and whether what he did was referable to his contract and done in pursuance thereof is a question of fact. The facts of the performance being settled by the jury, it was for the court to determine from these ascertained facts as a conclusion of law whether there was performance or not as promised and agreed.
It is clearly the intention of paragraph 542 that the verdict of the jury, in equity cases, on the controverted questions of fact, together with the admitted facts, shall be sufficient in fact and in law for the basis of a judgment of the court fínálly settling and adjudicating the rights of all parties before it. The verdict returned by the jury afforded no such basis. Therefore the court did not err in setting it aside and ordering a new trial.
There are some other questions presented in the briefs and which were urged for decision at this time in oral arguments, but as they were not involved in the order granting the new trial nor raised in the trial court so far as the record shows, we will not assume the burden of deciding them.
The order granting a new trial is affirmed, with direction that the cause be remanded for further proceedings according to law.
FRANKLIN and CUNNINGHAM, JJ., concur.
