105 Kan. 54 | Kan. | 1919
The opinion of the court was delivered by
William A. Hurt brought this action to recover damages from E. E. Stout and Alice A. Stout, husband and wife, for the breach of a covenant of warranty against encumbrances, and as the defendants prevailed, he appeals.
In an exchange of properties the defendants executed a deed to plaintiff for a large tract of land, and in his petition he alleged that the defendants covenanted that the land was clear and free of encumbrances except an indebtedness “against said property not to exceed $5,600 on the above real estate, encumbrance of record.” He stated that it turned out that there were other encumbrances against the property, for the satisfaction of which the property had been sold by due process of law, and that the plaintiff had thereby sustained damages in the sum of $15,000. In their answer defendants alleged that the covenant of warranty in the deed when executed contained an exception of an indebtedness “not exceeding fourteen thousand dollars,” and that after the execution and delivery of the deed, the words “fourteen thousand” were erased and the words “fifty-six hundred” substituted, and that there were addéd the words “on the above real estate encumbrance of record.” These material alterations, it was alleged, were made without the knowledge or consent of the defendants, and with the knowledge and at the request of the plaintiff. The jury returned a verdict in favor of plaintiff, and with it answers to special questions to the effect that the instrument was changed after execution, and that the change was made in the presence of plaintiff, and at his request, and further that the defendants did not know of or authorize the change in the deed. It was further found that the total amount of the encumbrances on
The findings of the jury definitely determined that after the execution of the deed it had been altered at the instance of the plaintiff, and without the knowledge or consent of the defendants, thus reducing the encumbrances assumed by plaintiff from a sum not exceeding fourteen thousand dollars to an amount not exceeding fifty-six hundred dollars. This was the principal issue between the parties, and there is no contention that these findings are without support in the evidence.
The first contention is that the court erred in setting aside one of the findings and then overthrowing the general verdict because it was inconsistent with the remaining findings. Special findings control a general verdict, and therefore the court was authorized to set aside the verdict and give judgment in accordance with the special findings. (Civ. Code, § 294, Gen. Stat. 1915, § 7194.) It is immaterial that a special finding returned was set aside if those remaining settle the substantial issues and warrant the judgment that was rendered. Did the plaintiff make or cause the making of a material alteration in the deed? That was the question that divided the parties. The finding set aside was not in conflict with, nor did it impair, the force of the findings that the plaintiff had changed the covenant in the deed. The invalidating effect of the change would have been the same, however the answer to question ten had been made, and the court was well within its authority in entering judgment for defendants upon the other findings. According to the special findings the alteration was
Neither is there anything substantial in the contention that when the. defendants filed their motion for a new trial, it amounted to an election to stand upon that remedy and constituted a waiver of the motion for judgment. Under the circumstances defendants were entitled to ask for relief under both motions, as the motion for judgment upon the findings was taken under advisement and was not to be determined within three days, and as a motion for á new trial to be effective must be filed within three days after the verdict is returned, it was incumbent upon the defendants, for their own protection, to place the motion for a new trial on file before the disposition of the first motion. The filing of the latter did not waive the right to have the former considered, and when judgment on the findings was given in their favor, the motion for a new trial became immaterial and, as it required no further consideration, its withdrawal was proper. (Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71; Railway Co. v. Osburn, 79 Kan. 348, 100 Pac. 473; Linker v. Railroad Co., 87 Kan. 186, 123 Pac. 745; Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922.)
Something is said by plaintiff about the ratification of the alteration by defendants, but no such issue was raised in the pleadings. If plaintiff relied on ratification or estoppel, he should have pleaded the facts on which such a defense was based. No such issue is presented in the pleadings, and there is nothing in the record to show that any evidence was introduced on the subject.
Some other contentions are made by plaintiff, but we find nothing substantial in any of them.
Judgment affirmed.