High v. Johnson

| Wis. | Jan 15, 1871

DixoN, C. J.

We perceive no error in the first, fifth and sixth instructions given for the plaintiff, which are the only ones complained of in this court.

It is objected to the last clause of the first instruction, that the jury were informed, as matter of law, that the property in question became the property of the plaintiff. But the instruction was clearly hypothetical. It signified no more than that the property became the property of the plaintiff provided the jury found the facte as submitted to them in the first sentence of the same instruction. The facts from which the conclusion followed were fairly submitted to the decision and judgment of the jury; and so we think they must have understood the instruction.

Neither is the language of the fifth instruction objectionable on the grounds stated by counsel for the defendant. The court did not direct the jury that they must find that the plaintiff expressly authorized the sale of the horses, and the instruction does not convey such meaning. It was open to the jury, upon this and all of the instructions, as we understand them, to find an implied authority to sell from the previous acts and conduct of the parties. Indeed, there was. no proof of any express authority whatever, but the contrary; and the jury must, we 'think, have understood and applied this instruction to an implied authority to sell, as the court, beyond doubt, intended. And as to a ratification of the sale by the plaintiff after it was made to the defendant, which it is said the instruction withdrew from the consideration of the jury, we find no evidence in the case to that effect which could have been considered by the jury.

The sixth instruction is said to have been erroneous, because the court gave, certain language as being in testimony by the plaintiff, when there was no such testimony. The court said: “ The plaintiff testified on his cross-examination, that Lyman T. High sold horses from his, the plaintiff’s, barn without authority so to do. He also testified that Lyman T. High was permitted to sell and exchange horses which belonged to the plaintiff.” Both these statements were fully justified by the testimony given by the plaintiff on cross-examination. After testifying that Lyman T. “ took horses out frequently; frequently changed horses,” etc., but “ never took property in the way he did this time,” he further stated in evidence, respecting the sale in question, that Lyman T. “ had the same right this time as before, no right at all” And again he testified, speaking of the horses in suit: “I forbid Lyman taking the horses out of the bam.”

To the refusals of the court to give the second and seventh proposed instructions asked by the defendant, exceptions were taken, and those exceptions are also urged. Both requests were properly refused, for the reason that they ignore entirely propositions of fact which were not without some support in the evidence, namely, that the plaintiff had revoked the author-: ity of Lyman T. to sell before the sale was made, and that the defendant knew of such revocation at the time of his alleged purchase. They likewise omitted another most important qualification required by the evidence, which was, that the purchase by the defendant must be found to have been bona fide and actual. There was testimony which tended to show that it was merely colorable and collusive. If the jury had found all these propositions of fact against the defendant, still, under the request to charge, if granted, it would have been their' duty to return a verdict in his favor, if only they had found express or implied authority from the plaintiff to Lyman T., at any time before the sale, to sell the property in dispute. The language of the second request was, “ either before or at the time,” etc. And the seventh request was in substance the same. It referred to past time, and permission by the plaintiff Lyman T. to buy and sell before and up to the time of sale to the defendant, but not at that time. All the facts proposed to be submitted to the jury by that request, and upon the finding of which they were required to return a verdict for the defendant, were consistent with the facts (if the jury had so found, as they might upon the evidence) that the authority of the agent was revoked immediately before the sale, and that the defendant had notice thereof. They were consistent with the fact (which might also have been found by the jury) that the sale to the defendant was merely colorable and collusive.

The remaining points taken by counsel we regard as untenable. Without considering whether the court may, against the objection of either party, direct the jury to sign and seal their verdict and return it into court on the following day, it is clear, if neither party do so object, that the practice is proper. In the absence of objection, the parties are deemed to have tacitly assented to it, and cannot afterwards question the verdict on that ground. This was so held in Douglas v. Tousey, 2 Wend., 352" court="N.Y. Sup. Ct." date_filed="1829-05-15" href="https://app.midpage.ai/document/douglass-v-tousey-5513075?utm_source=webapp" opinion_id="5513075">2 Wend., 352. The record here not only shows that no objection was taken, but that the defendant, as well as the plaintiff, prepared a form of verdict in his favor, and submitted it to the jury to be signed and sealed by them in case they should so find, and returned into court on the next day. This was something more than a tacit or implied waiver of objection on the part of the defendant. It was a clear and positive assent.

And the authority of the court, on the re-assembling of the jury and the delivery and opening of the verdict next morning, to send them out again, is clearly sustained by the case above referred to, and others there cited. And so it was held in Pritchard v. Hennessey, 1 Gray, 294. The jury were twice directed to retire; first, to put their verdict in more proper form, and secondly, to consider what damages, if any, the. plaintiff should recover for the detention of the property. We see no objection to this practice, even upon the receiving of a sealed verdict. It is very common in our courts, both upon verdicts of that kind and others.

Nor was it the error in the court to give the brief verbal instruction respecting the insertion of a nominal sum for damages in the verdict. This was no part of the charge of the court,, within the meaning of the law (ch. 101, Laws of 1868), but a direction, after verdict found disposing of all the material issues, as to what should be the form of it.

Neither was it error for the court, after the jury had refused to find the amount of damages, or any damages, in favor of the plaintiff, peremptorily to direct them to find a nominal sum of six cents. It seems to have been considered necessary that there should be some finding or assessment of damages, either actual or nominal, in order to sustain the verdict and judgment. We are of a different opinion; but, however that may be, the peremptory order in a case of this kind to find six cents, even though wrong, is not an error for which the law cares, or which the courts will pause to consider.

The defendant asked that the jury be polled. This was after the verdict was received and recorded. It was then too late to make the request. This conclusion clearly follows Rom the decision in Farrell v. Hennessy, 21 Wis., 632" court="Wis." date_filed="1867-01-15" href="https://app.midpage.ai/document/farrell-v-hennesy-6599782?utm_source=webapp" opinion_id="6599782">21 Wis., 632, where it was held to be a waiver of irregularity in the rendition of the verdict, that objection was not taken before the verdict was pronounced and recorded. It was irregular there to receive and record the verdict ; yet the defect was waived by the omission to object. Here tbe verdict was regularly received and recorded; and for mncb stronger reason must we bold tbat it was thereafter too late for tbe defendant to open tbe controversy, and insist upon polling tbe jury. There is a time for all things, and tbe time for polling tbe jury is before their verdict is pronounced and recorded by tbe court.

By the Court. — Judgment affirmed.