20 Iowa 127 | Iowa | 1865
At the request of the plaintiff’s counsel, before the jury retired to consider of their verdict, the court required them to find, in addition to their general verdict, upon the following particular questions, to which they returned the answers following each question, to wit: 1. State whether or not there was a bill of sale executed by Jacob Killian & Company to the defendant, the Presbyterian Society; and if so, what was the consideration thereof, and for what object or purpose was the same given?
2d. Whether the plaintiff, C. Lamb, under or by virtue of any contract with the Presbyterian Society of Marshall, its agents, trustees, contractors, or sub-contractors, did or did not furnish the material set forth in plaintiff’s petition for the purpose of erecting a church edifice on lot number one, in block number twenty, in Marshalltown ?
Answer. He did.
3d. Whether the plaintiff, as such contractor with said Presbyterian Society, its agents, trustees, contractors or sub-contractors, did or did not furnish the lumber mentioned in plaintiff’s petition, for the purpose of erecting a church edifice on said lot ?
Answer. He did.
' 4th. What was the value of the lumber furnished by the plaintiff, if any, for the erection of said church edifice?
Answer. $741.68.
5th. Whether or not said lumber was in course of construction for said church edifice at Marshalltown at the time the plaintiff filed his statement for a lien, to wit: July, 1865?
Answer. Yes.
6th.' Whether or not since the furnishing of said lumber by the plaintiff, and since the filing of plaintiff’s statement for a lien, the said lumber has been put into said church edifice by the said Presbyterian Society, its agents, trustees, contractors or sub-contractors ?
7th. Whether or not the defendant, the said Presbyterian Church, was the owner of the lot on which said church edifice was and is now in course of construction ?
Answer. Yes.
The jury also returned a general verdict for the defendant.
It is provided by the Revision, that “ where the special finding of facts is inconsistent with the general verdict, the former controls the latter and the court may give judgment accordingly.” § 3080. The only question then is, whether the special finding of the facts, is inconsistent with the general verdict. The fact that J. Killian & Company executed a bill of sale to the Presbyterian Society to secure it against loss for money advanced .on a building contract cannot, per possibility, be inconsistent.with the general verdict. It does .not appear from the question or answer, what property was.included in the bill of sale; nor whether any of the property claimed-by the plaintiff to have been furnished by him was included therein: the taking of such a bill of sale, if it was of the same property, would not necessarily nor reasonably make defendant liable to plaintiff therefor.
The second, third and sixth questions are in the alternative as to several persons; and the jury might well find as to the second and third, that the plaintiff did, under -acontract with a sub-contractor,- furnish the material to,-him for the purpose of erecting the church edifice, without finding the defendant liable for such material; for th’e defendant could only be made liable by giving the required notice
As to the fourth, fifth and seventh questions, it may be readily seen that the plaintiff may have furnished the amount in value of materials, as found, and they may have been used in constructing a church on defendant’s lot, without making defendant liable for the amount, since sueh^ materials may have been (as seems, probable from the transcript in this case) purchased by a contractor upon his own responsibility, and paid for to him by the defendant, before the notice or other steps were taken by plaintiff, which are prescribed by statute as necessary to fix the liability of defendant as owner;
In order to justify a court in rendering a judgment upon a special finding of facts, against the general verdict, ■such finding of facts must be inconsistent with the general verdict, and when taken together with the facts admitted in the pleadings, must be sufficient to establish the right to recover. Birckhead v. Brown et al., 5 Hill, 634; Sisson v. Barrett, 2 N. Y., 406; Barto v. Himrod, 8 Id., 483; Davenport Savings Fund Association v. The North American Fire Insurance Company, 16 Iowa, 74; Leach v. Church,
Affirmed.