6 Kan. 471 | Kan. | 1870
The plaintiff in error, who was plaintiff below, obtained a judgment against the defendants in error for $458.53. • Plaintiff claimed in the petition divers' sums, in nine different causes of action, amounting in the' aggregate to $8,707.69, and interest thereon. Defendants for answer made a general denial, and for a second defense pleaded payment on the several causes of action embraced in causes four, five, six, seven, eight and nine, of the petition, to the amount of $1081.87, and admitted a balance due and unpaid on those counts in the petition of $449.19; and for a third defense, to the first, second and third causes of action, claimed that the articles therein alleged to have been sold to defendants, amounting in the aggregate to $7,176.63 were purchased under a speciaL agreement to the effect that the defendants were to ship the goods, mainly powder, to Montana Territory, and whenever said defendants should dispose of said goods and they should realize the money arising from the proceeds of such sale, the said sum was to become due and payable, meantime to bear interest after six months; averring that the goods could not be sold for money, and that defendants had sold them for a voucher in amount $16,791, of which fact they notified the plaintiff, and had delivered the voucher to the plaintiff to collect- or dispose of, and when the proceeds were realized to pay for the goods and hold the remainder subject to the order of the defendants, and the plaintiff still holds the voucher.
The plaintiff- replied by a general traverse, and in a second, third, and fourth reply set up substantially that defendants had had the benefit of the payments set up in
The defendants’ theory, on this part of the defense, seems to have been to admit the justice of the plaintiff’s claim in the former suit, and claim as a credit in this one all they could prove, and then deduct the plaintiff’s demand in the former action from that, and for the remainder they would be entitled to a credit in this action. And this was the only course left for the court to pursue; and in this view we cannot say that the two receipts for $64.49 and $91 were improperly submitted to the jury. They were in evidence in the first suit, (see the testimony of Yiergutz;) and the court was to presume were properly in that suit; and the condition of the case requiring that all the credits to which defendants were entitled in both suits should go in evidence, these papers were properly in. It will be conceded that it is an awkward and unartistic method of trying a ease; but this condition of things was brought about by the plaintiff splitting up his account so as to make two causes of action. If defendants had made more payments than the amount of the claim in the first action, they were entitled to have them go on the claim set up in the last. These remarks will also apply to the other testimony admitted over plaintiff’s objections.
The jury also found certain spécial facts responsive, to “ interrogatories ” submitted to them by the court a.t the instance of the plaintiff, as..follows
Interrogatory First: What amount, if ány, is due from the defendants to the plaintiff oh the claims sued upon in this ease, exclusive of payments and all" other credit's ?' [Answer — $458A3.] 1
Second: What amount of the payments and credits ■given in evidence by the defendants;-"was gNen - in" evidence and allowed to.the., defendants in .the .cage-of-the Hazard Powder Company against, Otto H.. Viergutz, heretofore tried in this court? [Áhswer — $3,475.52.]
Third; What was the amount of the excess, if any, of :the payments'and credits claimed and given in-,, evidence in that case, over and above the amount of the plaintiff ;’s claim in that case ? [Answer — $1,225.85.]
Fourth: What payments have.the.defendants made, on the claims of the plaintiff, sued upon'in this case?; Answer’ — $1,225.85.] ' ’ •" ‘
' Fifth:-What was the aixiodht of the'plaintiff’s’'hlaim in the case of. the Hazard Powder' Company against Viergutz, heretofore tried in this court ? . [Answer — - §3,475.52.] ' '
Sixth: Was the plaintiff’s claim in that case on an account of demand for goods sold and delivered by the plaintiff to O. H. Viergutz, David vPrager and Julius Haug, partners, as “ O.H. Viergutz & Co.,” the defendants in this.action? [Ahgwer — Yes.] . / ,'
Seventh: Was the Montana voucher delivered fo the plaintiff as a paymentj" of as security only ? ' [Answer— ■As security;] ' • ’ '■■ " ' • ••'■■•■'
'■■ Fighth- Was the transaction-'’between* the pláintiff-'and - defendants- in relation to the Montana powder a sale .or .not? [Answer — It was ,a .sale,] .. ... . ...
Tenth: If it was not a sale, what were the terms of the transaction ? [Answer — It was a sale.]-
Eleventh: Is the credit of October 31, 1867,'of $700 on the account, sued on in the case of the Hazard' Powder Company against "Viergutz, the same credit of that amount claimed in this case ? [Answer — Yes.]
.- It is. claimed by the plaintiff in. error that the special findings of fact are not only inconsistent with the general verdict, but are inconsistent with each other. It will be observed that the special findings are not, strictly speaking, a special verdict, though in -many respects they may be assimilated to a special verdict; but they differ in this — that they do not purport to be all the points which the jury agreed upon, or found necessary to consider,, in deciding the questions submitted to them. They are .answers responsive to certain questions. Any fact necessary to be decided by them in reaching a verdict, and not within the scope of these inquiries, would not appear in the answers; so that we have not to determine whether taken as a whole they are sufficient to uphold the judgment ; but if any of them are inconsistent with the general verdict, to that extent it ought to take the place of the general verdict; and of course the general verdict ought not to stand, if the inconsistency is of such a character that it is apparent that both cannot be. correct, and probably subjecrt.to the further consideration of whether it-may be seen from the record that substantial injustice may have resulted from the conflict. It is not every error that vitiates a verdict. They are to be favorably construed; and if sufficiently certain upon matters of sub
There -can he no question hut that the verdict must dispose of all the-issues; if it does that'with sufficient certainty to be understood with reference to the proceedings, that is all that should be- required. Now in the pleadings in this -case, while there is ' a general denial, there is enough to -show that defendants admitted that the claims in causes of action numbered 4th,- 5th, 6th, 7th, 8th and '9th, amounting to $1,531.06; were valid claims, and that paymefits thereon had been made to the amount of $1,081.87. This would leave due on those claims. $449.19; The other part of the plaintiff’s- claim it was urged, was not yet due -by the terms of the purchase; so that there were in fact two main questions — one, as to the payments made on one part of'the claim, andthe other, as to whether that portion of the claim was due. The court instructed the jury that they must find for the plaintiff on the pleadings at least $449.19; and under proper -instructions, left the other questions to them. The jury actually found a sum a little larger than was required by the pleadings, probably as interest from the time the action- was brought, or for some other cause. It is apparent from this verdict that they found the issue on causes of action numbered 1st,'2d, and-3d, for the defendant; and thus by the general verdict; under proper instructions, they passed upon all the -issues submitted to them, and found for the plaintiff as stated; and this is all that- is essential in' a verdict. It is erroneous'to'infer from such a verdict on such pleadings'that they found all the issues'for the plaintiff; "Neither reason nor-the authorities sustain any such doctrine. Nor do we find on careful scrutiny any conflict with this general verdict
The judgment must he affirmed.