22 Kan. 277 | Kan. | 1879
The opinion of the court was delivered by
This action was brought April 24,1877,. by J. C. Johnson against E. Husband and W. A. Short, on a promissory note for $170, dated July 22, 1876, due October 1, 1876, payable to the order of Platter & Crew, indorsed,, when made, by Short, and indorsed on August 20, 1876, by Platter & Crew to the plaintiff Johnson.
The defendants set forth in their answer, as a defense to-the action, that the only consideration for said note was two-horses purchased by Husband of said J. C. Johnson and ~W. V. Platter, and N. S. Crew; that the horses were purchased for work on Husband’s farm, which the vendors at the-time well knew, and stated that the horses were all right (except a cold), which statement Husband relied upon, and in consideration thereof made the purchase; that the horses, however,, were not all right, that they had a contagious disease which-rendered them worthless, which the vendors at the time well knew, and which Husband did not know; that said horses communicated said disease to a large number of other horses belonging to Husband, which rendered those other horses also-worthless; that Husband expended a large amount of time, money and labor in doctoring and taking care of these horses r
The record is voluminous, and many questions are raised, but we hardly suppose that it is expected that we shall go' into elaborate detail in the discussion of, all of them.
The plaintiff claims that the court below committed material error in the admission and rejection of testimony. Whether it did or not, we shall not stop to inquire, but shall pass to the next questions.
The plaintiff also claims that the court erred in its instructions to the jury. Neither shall we stop to consider this question. Eor, even if the court did err as is claimed, we would think that, with the view the jury took of the case, the error was immaterial.
^e court and jury the plaintiff was deprived of a substantial right given him by the statutes; (Laws of 1874, ch. 91 pp. 140, 141 § 1; Bent v. Philbrick, 16 Kas. 190; Cent. Branch U. P. Rld. Co. v. Hotham,
The plaintiff also claims that the verdict of the jury for $781.73, damages, was the result of marking, aggregation and division, and that the verdict was procured in that manner in pursuance of a previous agreement to that effect made by the jury. On the motion for a new trial, the plaintiff read in evidence the affidavit of George Geisler,, one of the jurors, which affidavit states as follows:
“That the jury, in order to arrive at the amount of damages to be allowed to said defendant Husband, mutually agreed that each juror should set down such amount as he thought said Husband should recover for each separate item of damage claimed; that the several amounts thus obtained should be added together, the aggregated sum divided by twelve, and that the quotient thus obtained should be taken and accepted as the amount to be returned in the verdict of the jury 'as the damages sustained by the said Husband; . . . that such agreement was carried out, and the amount of damages returned by the jury in their verdict was obtained by such addition and division, and the quotient obtained was in all cases abided by on the part of said jury.”
Three other jurors agreed with Geisler (as their affidavits show) that the verdict was obtained as Geisler states that it was.
The defendants read in evidence on said motion for a new trial the affidavit of Daniel Lockard, a juror, which affidavit states that it was —
■ “Proposed that each juror should mark down the amount he thought the defendant ought to recover on each of. the separate items for which damages were claimed; that the several amounts for each item be divided by twelve, and the several quotients then added together, in order to see if they*284 could get an amount upon which they could agree. That each item of damages was taken up separately, and in each case after the average was found as aforesaid the amount was adopted by vote of all the jurors; and after the several amounts had been so obtained, the said sums were added together, when it was proposed to deduct from the sum so obtained the amount of the note upon which this suit was brought, which after some discussion was done, and the balance was then agreed upon as the amount of damages to be awarded.”
There are some other questions in this case, but we do not .think that it is necessary to consider them. The judgment ■of the court below will be reversed, and cause remanded for further proceedings.