131 N.W. 271 | N.D. | 1911
This action was begun by the plaintiffs and respondents
’herein against W. D. Springer as treasurer of the village of Wyndmere as sole defendant, in which action a summons and verified complaint dated June 26, 1906, was issued and served upon the defendant therein named. The action was an equitable one asking for injunctional relief against the treasurer paying warrants and claims registered after the two warrants owned by plaintiffs, to the effect that the funds of the village be accumulated to meet the two warrants, aggre.gating $784.50 and interest, belonging to the plaintiffs. Accompanying the summons and complaint was an affidavit reciting substantially the same matters as the complaint, with the same statutory recitals as •contained in the complaint as a basis for an injunetional order pending suit. Based upon the summons, complaint, and affidavit was an injunetional order enjoining the treasurer from making payments of claims and warrants registered subsequently to those of the plaintiff. As a result of the injunetional order, the funds of the village of Wyndmere accumulated in its treasury, and, nearly a year thereafter, the "warrants remaining unpaid, the village having employed counsel in
To this supplemental complaint the defendant village, its treasurer,, and trustees answered, accepting and admitting service of said sup
“This agreement made and entered into this 8th day of November, a. d. 1905, by and between the North Dakota Artesian Well Company, a corporation of the state of North Dakota, located at Oakes, North Dakota, party of the first part, and the village of Wyndmere, North Dakota, party of the second part:
Witnesseth, That the party of the first part agrees and contracts with the said party of the second part, as follows:
First. On or about November 18th, 1905, to commence work on an artesian well to be located on village property in Block 1 in said village of Wyndmere, said land being the property of the party of the second part, and to prosecute the work thereon continuously and without unnecessary delay until said work is finished.
Second. To drill said well to a depth necessary to obtain a flow of water sufficiently clear for domestic and stock purposes. Striking quartzite or granite shall be considered proof of sufficient depth to fill this contract.
Sixth. For and in consideration for the drilling and casing of said well, said party of the second part agrees to pay the party of the first, party the sum of $1.50 per foot for entire depth of well, to be paid in cash at completion of well. .
Eighth. Party of the first part guarantees the well not to choke or clog for a period of one year from date of completion, but only on. condition that the well is not used for power purposes, and that the-flow of water from well is not checked by valves or mechanical contrivances, except upon permission of the party of the first part. In case the well should stop before that time, party of the first part will repair same or drill a new well, free of expense to the party of the second part. This guaranty, however, is null and void unless the well is settled for according to this contract.”
“This agreement, made and entered into this 4th day of February/ 1907, by and between the North Dakota Artesian Well Company, a domestic corporation, party of the first part, and the village of Wyndmere, North Dakota, party of the second part,
Witnesseth: That the said party of the first part agrees and contracts with the said party of the second part as follows:
First. That the party of the first part is to abandon work on the old well and commence work on a new well to be located on corner of Fifth and Ash streets, as party of the second part may designate.
Second. Party of the first part is to have the privilege to pull all pipes and casings out of the old well, and use same in the construction of the new well.
Third. Party of the first part is to drill said new well to the same flow as the old was finished, or 523 feet deep, which is to the same depth that old well was finished at, and to pipe same with 3 inch std. folk. pipe.
Fifth. That party of the first part agrees to use all due care and diligence to secure clean water.
Sixth. In consideration of the drilling of this well, party of the second part agrees to pay the party of the first part the sum of $150,
The answer then alleges that under said second contract, defendant company sunk and drilled a well to a depth not exceeding 225 feet, and failed to properly construct the well, and failed to obtain water sufficiently clear or in any way suitable for domestic or stock purposes, or to furnish any water whatever, and that defendant well company refuses to dig and procure for the village an artesian well as contemplated in their contract, which are the two contracts above set forth; that the well dug has always been of no value; that a well as contracted for would have been worth to the village $784.50, the contract price to be paid therefor; accordingly defendant village and its officers demanded the dismissal of the action. This answer was served upon the plaintiffs, and service thereof accepted and admitted by them, as well as by the defendant Artesian Well Company, who by its attorney answered alleging the contracts and performance under them; the digging of the well; that the same was as contracted for; that the well was accepted by the village, and paid for by the payment to the well company of cash in the sum of $784.50. That said cash was obtáined of the plaintiffs under previous arrangement of the village with the plaintiffs, in which the warrants should be drawn and issued to defendant well company, and by them transferred as an accommodation indorser only to the plaintiffs; that no consideration was paid for such indorsement, and that the delivery and indorsement merely constituted an accommodation transaction, whereby the village delivered its warrants into the hands of the plaintiff, and from plaintiff procured the cash to pay the well company for the well dug by it for the village. The well company, further answering, denied that they guaranteed that the warrants sued on were genuine, valid, and enforceable obligations of the village, and denied that there was any legal defense, set-off, or counterclaim to the warrants on the part of the village. Further answering, the defendant, in answer to the contention of the village of Wyndmere, defendant, denied the answer of the village, except admitting its contracts hereinbefore set out with said village, and alleging its full performance thereunder. It further alleges that what it did under the second contract was an independent transaction, and in no wise revoked, set aside,' or opened the settlement made for the con
To the answer of the village, the plaintiff replied denying generally the answer, except admitting the execution and delivery of the contracts, and alleging the compliance therewith by the well company defendant, and the acceptance of the well by the village of Wyndmere. Also, they admit, by way of reply, the execution of the second contract, and allege that the well company defendant has fully performed thereunder, and that the village of Wyndmere and officers ought to be estopped to say that the village of Wyndmere has suffered any damage in relation thereto; and further allege the insolvency of the defendant well company, and pray for damages as demanded in their supplemental complaint. To the answer of the defendant well company interposed to the supplemental complaint, the defendants, village of Wyndmere and officers, served and filed a general denial to all matters contained in the answer and counterclaim, except those matters admitted or alleged in the answer of said village and its officers hereinbefore set forth.
The foregoing recites in substance the pleadings in the three-cornered action in which issue was joined prior to the case being called for trial on the regular December, 1910, term of district court for Nichland county.. When so reached and called for trial, counsel, on behalf of defendant- village, treasurer, and trustees, announced the case as triable to a jury. Counsel for the plaintiffs and counsel for defendant well company joined in a demand that the action be tried by the court without a jury, providing that the court, if it so desired, might stibmit any fact or facts involved to a jury at the convenience of the court, and, accordingly, moved that the action be tried by the
A jury was called and trial had on the merits, plaintiffs offering their testimony, and establishing a prima facie case, and resting. The defendants village and its officers offered testimony at length, including the two contracts heretofore set forth. That, under the provisions of the first contract between the'well company and the village, the well company, prior to December 16, 1905, dug an artesian well in tsaid village, and secured a flow of water a short time prior to December 16, 1905, but that the water remained roily and full of impurities, and never ran clear, pure water or water suitable for domestic or stock purposes. The village, relying upon the representations of the officers of the well company, and particularly on the second and eighth paragraphs of the first contract, and because of the conditions of said con'tract reciting that payment for the well was to be made in advance •of the expiration of the period for which the same was warranted, paid dor the well by the execution and delivery by the village board of the two warrants sued on, which were, on December 16, 1905, executed by the village officers payable to the defendant well company as payees, and were by said company indorsed and negotiated immediately upon, •their receipt over to the plaintiffs, Hart and Springer, who gave the well company cash to the amount of the warrants.
Such testimony shows that the well was never satisfactory, and never furnished suitable water; that on the March following, the managing officer of the defendant well company put a lock and key on the well to regulate the flow of water to clear the water, without results; that thereafter the flow became clogged; about six months after the warrants had been issued in payment for it, the well stopped flowing altogether. The village repeatedly demanded of the well company that the contract under which the same was dug be complied with, by the repairing of the old well or by the digging of a new one, and finally .about the first of February, 1907, seven months after the commencement of this action, and while the payment of the warrants was tied nip by the injunctional order originally issued therein, the defendant well company attempted to repair the well, digging it deeper, but soon abandoned work thereon. They and the village then executed Exhibit •“C,” and thereunder left the first well and dug the second one, to a «depth of 315 feet, under the testimony offered by the village, striking
At the close of the foregoing testimony of defendant, the defendant village having rested, the defendant well company moved for an instructed verdict in their favor, and against the village, for the sum of $150 and interest from the 15th of February, 1907, and also moved that a verdict be returned in their favor, and against plaintiffs, on the-ground that they had performed fully under their contracts, and that, no failure of consideration for the warrants in the hands of the plaintiffs had been established, and that they were not liable as indorsers- or guarantors of the warrants, which motion was denied.
Thereupon defendant well company offered its proof, admitting digging of the well under the first contract executed by it and village, and offering evidence to -show that they had refused to dig the well, except, that they would be paid in cash; and that the execution and delivery of the warrants to their vice president, and the indorsement by him to-the plaintiffs, were but part of an understanding had between them and the village officers and the plaintiffs, whereby defendant company would receive cash instead of warrants, under the cash provision in the-first contract. That the flow of the well was about 23 gallons per minute; the water cleared after two days, and the water, ten days from the completion of the well, was, to quote its witness, “what is considered and generally accepted as water sufficiently clear for domestic and stock purposes; that the water was at the time he left it after the completion of the well, and at the time he returned thereto about ten days-later, suitable for domestic and stock purposes.” That on December
Defendant’s witness further testified tbe flow of tbe second well was-about 12 gallons per minute and clear; that be saw it for three days-thereafter, and it was then flowing clear water; that during tbe first-of March, 1907, be presented a bill to tbe village for tbe $150 due the-company under tbe contract, stating tbat be considered tbe contract complete, and tbat if they would accept it as such, be would do what be could to restore tbe flow to tbe well, which bad previous to tbat time clogged; tbat in bis opinion tbe sand coming with tbe water in tbe pipes bad caused tbe stoppage of tbe flow of water. Tbat in tbe opinion of tbe witness tbe well did not start flowing roily and sandy on account of any imperfection in tbe drilling or finishing of it.
Tbe defendant company renewed its motion made at tbe close of' tbe case of tbe defendant village, which motion was denied. Thereupon demand was made by tbe plaintiffs tbat tbe court require the-jury to .find a special verdict, which demand was granted. Thereupon a special verdict consisting of forty-six questions was prepared. The-
The appellant now urges for the review of this court as error the rulings of the trial court, and particularly the action of the court, (1) in trying the case before a jury, over appellant’s objection; that the ¡same was a court case properly triable to the court alone, and not a jury case, and (2) that the court was without jurisdiction, contending that jurisdiction cannot be conferred by consent of parties, and could only be acquired under process or by order of court made in pursuance •of the provisions of statute as to the bringing in of parties as litigants in the case; and (3) errors of law arising during the trial upon the admission of testimony; and (4) refusal of the court to grant the motions of appellant for a directed verdict; and (5) alleged insufficiency of the unsigned special verdict to support a judgment.
The issues as between the village and the well company, so far as this action is concerned, are the same as though the well company had sued the village for payment for the construction by it of the well for the village. In fact, under the counterclaim of the company for $150, such is the issue tendered. Such a suit is one at law and a matter properly triable to a jury; in no sense can it be considered an equitable action. Then again, this action, as between the plaintiffs who hold the village warrants, and the well company, who negotiated the •same to them in the first instance, amounts to no issue at all, if the •well company recovers judgment in its favor against the village on its
Tor the foregoing reasons, the case and all the issues involved in its determination were properly triable to a jury. Of course, the issues were somewhat involved, as must necessarily be in every action in which three parties attempt to try two different lawsuits in one action. But the parties chose to do so, and because they so elected and so act does not in itself change the nature of the action from one in law to one in equity.
No relief was available to any of the parties except for money judgment, nor was any issue involved except that of an issue of fact for the recovery of money only, and under § *1009 of the Code, such issues must be tried to a jury unless a jury is waived. The court, therefore, was obliged, on the demand of one of the parties, to submit the issues (to a jury for their determination.
This brings us to a discussion of the question of jurisdiction raised ¡by the defendant company’s claim that the trial court was without jurisdiction over it as a defendant, or of the subject-matter litigated by it in the action. Want of jurisdiction over the person or subject-matter can be urged at any stage of the proceedings; but it is significant that want of jurisdiction was not raised until after the entire trial of the action on the merits, and a determination therein adverse to the .appellant had been rendered. Had appellant recovered in the trial court, it would now be strenuously contending for the jurisdiction of that court and the validity of the judgment, were it before this court on its (codefendant’s) appeal. This action was begun in the district court by the plaintiffs against the treasurer of the village of Wyndmere. A summons and complaint were regularly issued and -served ■with an order of court based thereon. The court then had by regular process jurisdiction of the parties and subject-matter. Thereafter, by stipulation of the parties recited in the pleadings themselves, addi
Another contention of the defendant company urged is that the-warrants upon which judgment was rendered against said company on its implied warranty to plaintiffs, that the warrants were valid and: legal obligations of the village, and not subject to set-off or counterclaim, were merely transferred by it to the plaintiffs as a mere conduit of title in which it was in the position of an accommodation indorser only, transferring the warrants to the plaintiff under -a prearrangement with the village officers and the plaintiffs themselves, trustees of the village, and that all this was done in order that the-village might comply with its contract, wherein it agreed that the consideration for the drilling and casing of the well to be paid by the-village was “to be paid in cash at the completion of the well.”
As to this contention, defendant company, at the time of the execution of the contract calling for payment to be made in cash at the completion of the well, being bound to know the law, thereby knew that, the contract called for the performance of a legal impossibility on the-part of the village. If the contract was to be construed literally to the-effect that cash, instead of village warrants or orders for payment of money, was to be the payment for said well at its completion, the defendant company is presumed to have known that the provisions so-imputed would call for an ultra vires act on the part of the corporation, Defendant company, like all persons dealing with a municipal
The village offered proof establishing that the first well dug had failed, and that, under the second and eighth paragraphs of the eonvtract under which said well was drilled, the defendant company was liable on the village’s demand for breach of the written warranty that the well would not choke or clog for a period of one year from the date of completion, and that, if the well should stop flowing before that dime, the well company would repair the same or drill a new well free of expense to the party of the second part, and furthermore that the well was not according to contract, in that the water was never ¡sufficiently clear for domestic or stock purposes. The defendant company in its main case, by the testimony of its vice president, its managing officer, and the officer who, on behalf of said company, had negotiated all the contracts- and performed all the transactions had with the village, established by his testimony that, on the village’s demand that the well be repaired or a new well dug, his company, acting by ■himself, drilled the first well deeper in an attempt to repair the same. That he met with the board, and in further compliance with.the first ■contract, under which the obligation arose to repair the well or dig .a new one free of expense, entered into the second written contract •with the village. This contract was executed by the village board in ■session for the purpose, and by the defendant company by its vice -president, and under the second contract the second well was begun, and the second contract attempted to be complied with. Then the •defendant well company sought to establish that the first written contract had been abrogated by a verbal intervening contract consisting of statements made by him to some members of the board at or during the time the well company, acting by the vice president, was deepening the first well in an attempt to repair the same, the claim being •made by the defendant company that this statement by him to some
A construction of the contracts shews the testimony offered was; without the case and wholly immaterial; the obligation to dig the second well arose under the contract under which the first well was dug.
This takes us to the questions raised by appellant regarding the special verdict. Under the stipulation between the parties, the questions; submitted to the jury under the special verdict covered and included, all the issues of fact in the action, and the sufficiency of the verdict as a special verdict was by stipulation waived. The intent of the par1ties could have been none other than just what is covered in this stipulation. It is noticeable also that, at the time this stipulation was entered into, the court had answered on motion of some of the parties; litigant, and over the exception of others, appellant participating there
Nor was it necessary under the evidence at the close of the trial that the court submit many of said questions to the jury for their determination. A careful inspection of the record convinces us that there was no material controverted issue of fact at the close of the case, and that the court could have itself properly answered every question necessary upon which to base the identical judgment entered, or could have directed the jury to have so answered all questions necessarily involved in the determination of the case. In proof of this, we will briefly review the questions submitted by the court to the jury and answered by them.
The first question they were allowed to answer was in substance whether the village executed the warrants sued upon on the date they bore, December 16, 19.05. The jury answered this in the affirmative. Defendant company’s answer in the fourth paragraph thereof admits the issuance of the warrants, their registration and indorsement, and the receipt therefor of their full face value. No issue was tendered on the pleadings on this question. Question number eight was next submitted to the jury, and answered in the affirmative; the question being whether the defendant company delivered said warrants to the plaintiffs, Hart and Springer, on December 16, 1905. This is admitted by defendant company’s pleadings. No issue is tendered on this question. The next question submitted was number sixteen, an inquiry whether the well company, at the time the warrants were executed and delivered, had drilled a well for the defendant village to a depth necessary to obtain a flow of water sufficiently clear for domestic and stock purposes, which was answered by the jury in the negative, the answer to which is purely speculative. No such well was dug, if no water sufficiently clear for stock and domestic purposes was obtained, and as to whether it could be obtained at that place is therefore purely speculative so far as the depth necessary to obtain such a flow of water is concerned. The. answer to the question is rendered immaterial by question seventeen, an inquiry as to whether the well drilled under the first contract discharged water sufficiently clear for
The foregoing is an analysis of the testimony bearing on the questions under review, and as illustrating that the court could at the close-of the testimony have directed a general verdict in favor of the plaintiff, and against the defendant well company, and for dismissal of the village and its officers, and dismissal of the counterclaim of the well company against the village, and so summarily have disposed of the case. The reason why this was not done probably was that no motion therefor was made by either counsel for the village or the plaintiff, they evidently preferring to have a judgment rendered on verdict rather than on motion.
It is obvious then that the objections leveled at the alleged errors in submitting certain questions to the jury for their determination, and in fact all questions involving the validity of the verdict, cannot be considered as error, as no other verdict could have been rendered under the testimony and pleadings in the action than the one found. Under such condition of the record, the action of the trial court denying the motion of the defendant well company that the court direct-the jury to find in its favor was .proper. Likewise, for the same reasons, was the ruling on' certain motions to strike and answer certain of said questions immaterial. Hedderick v. Hedderick, 18 N, D. 488, 123 N. W. 276.
But one further question remains for consideration, and that is, that the verdict was not signed by the jury. Counsel for the appellant urges that because of this omission the verdict is void. The question arises under the statute, Rev. Codes § 1031, providing, in trials of civil actions, “the verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict.” While the statute is positive and requires by its terms the verdict to be signed by the foreman of the jury, the same statute is generally held to be directory, and not mandatory, and the verdict is valid without being signed.
In Berry v. Pusey, 80 Ky. 166, the court’s opinion reads: “This
As our procedure is identical with Kentucky as to practice andi statutory requirements in this respect, and as no objection was made-that tbe verdict was unsigned on its return and until long thereafter,, tbe remarks of tbe court above quoted apply; tbe two cases being identical as to facts.
Tbe statutes of Missouri, § 6269 of 1889, are tbe same as ours in, this respect, requiring tbe verdict to be signed, and that court in Gurley v. O’Dwyer, 61 Mo. App. 348, bolds: “That [while] tbe uni-versal practice in common-law courts for centuries bas required such; verdicts to be in writing, and to be signed by tbe foreman of tbe jury,. [yet] an unsigned verdict is not void.” That a motion in arrest of judgment will not lie on that account, and such Code provisions are directory merely, citing Morrison v. Overton, 20 Iowa,. 465; Burton v. Bondies, 2 Tex. 203; Hardy v. State, 19 Ohio St. 579; see also to same effect, Harrison v. Singleton, 3 Ill. 21; Gary v. Woodham, 103 Ala. 421, 15 So. 840; Maloney v. Harkey, Ga. Dec. pt. 2, p. 159; Harris v. Barden, 24 Ga. 72; Miller v. Mabon, 6 Iowa, 456; Menne v. Neumeister, 25 Mo. App. 300.
Indiana, however, bolds to tbe contrary. Trout v. West, 29 Ind. 51; Noakes v. Morey, 30 Ind. 103; Sage v. Brown, 34 Ind. 470.
In Louisiana, tbe Constitution requires that tbe verdict be recorded; on tbe minutes in English, and under tbe construction of this constitutional requirement, that state bolds tbe verdict must be signed. Dubertrand v. Laville, 8 La. 274.
Had tbe attention of tbe court been directed by motion or otherwise-to tbe absence of tbe foreman’s signature to tbe verdict prior to tbe discharge of tbe jury, undoubtedly tbe defect would immediately have-been cured by tbe court requiring such signature.
A verdict, like all other court proceedings, should be construed in furtherance of justice, and not be defeated by a statute intended only
This disposes of all questions submitted. Accordingly the judgment •appealed from is affirmed.