Peters v. Lane

55 Ind. 391 | Ind. | 1876

Biddle, J.

The appellees allege in their complaint that they were the owners oí a saw-mill in Boone county, and were engaged in manufacturing lumber; that, to enable them to carry on their business, they appointed the appellant their agent, at Whitestown, Indiana, to receive, handle, ship, and sell, for the appellees, the lumber they manufactured ; that by the terms of their agreement, appellees were to deliver lumber to the appellant, who was to sell the same for them at the best market price, to furnish bills, pay expenses, and account to appellees for all moneys remaining in his hands, which he received for lumber sold for them; that under the above contract, between the 1st day of June, and 30th day of December, 1872, they furnished and delivered to the appellant, at Whitestown, three hundred and fifty-seven thousand feet of poplar, ash, elm and sycamore lumber, of the value of six thousand three hundred and thirty dollars; that the appellant received and sold the same, and received therefor six thousand three hundred and thirty dollars, of which he accounted to the appellees, for the sum of two thousand five hundred dollars, leaving in his hands three thousand eight hundred and thirty dollars, for which he has failed to account; that appellees demanded the same from him, and that he make settlement therefor, furnish bills, etc., which he has wholly refused to do. Wherefore, etc.

There are three other paragraphs in the complaint, which need not be set out; nor need we state the answers and replies, as no question is made upon the pleadings. Issues were joined, a trial by jury had, a verdict for the appellees returned, with special interrogatories and answers, among the latter of which were the following:

“ 2. What amount of lumber did plaintiffs furnish defendant at Whitestown, Indiana, from the 1st day of June, 1872, to December 30th, 1872 ?

“Answer. Can’t say, definitely.

“6. What amount of lumber did plaintiffs furnish defendant from the 30th of December, 1872, to June 1st, 1873?

“Answer. Can’t say, definitely.

“ 11. What amount, per one thousand feet, did the defendant receive for the lumber furnished him by the plaintiffs during the year 1872 ?

“Answer. Can’t say, definitely.

“ 13. What amount has ho failed to account for ?

“Answer. In our judgment, eleven hundred and sixty-six dollars.

“ 15. Bid plaintiffs sell fifty-two thousand feet of ash lumber to defendant, during the year 1873 ?

“Answer. Yes, ash and oak.”

After the return of the verdict, and before the jury were discharged, the appellant moved the court to instruct the jury to definitely answer the above interrogatories; but the court “ having received a response from the jury that the foregoing is their verdict, and their answers to the interrogatoi’ies propounded,” overruled the motion, and the appellant excepted.

The answer to interrogatory thirteen, we think is sufficiently plain. It amouxxts to finding the sum as stated. The words, “ in our judgment,” do not render it uncertain or doubtful. But the answers to interrogatories two, six, eleven and fifteen, are insufficient. The questions were direct and pertinent to the issues. The jury were as much bound to answer them as they were to render a general verdict; and it was the duty of the court, under the motion, to reqxxire them to give a plain and direct answer to each interrogatory, unless, upon due consideration, they could not agree. This practice is well settled. Buntin v. Rose, 16 Ind. 209; Rosser v. Barnes, 16 Ind. 502; Noble v. Enos, 19 Ind. 72; Noakes v. Morey, 30 Ind. 103; Sage v. Brown, 34 Ind. 464; Maxwell v. Boyne, 36 Ind. 120; Reeves v. Plough, 41 Ind. 204; Hopkins v. Stanley, 43 Ind. 553; Rowell v. Klein, 44 Ind. 290; Bradley v. Bradley, 45 Ind. 67; Bowman v. Phillips, 47 Ind. 341.

Eor these defects in the answers to the interrogatories, the appellant moved the court for a venire de novo, which the court denied, and the appellant excepted. This ruling is ex’roneous. The Cincinnati, etc., R. R. Co. v. Washburn, 25 Ind. 259; Marcus v. The State, 26 Ind. 101; Trout v. West, 29 Ind. 51; McElfresh v. Guard, 32 Ind. 408; Pea v. Pea, 35 Ind. 387; Vater v. Lewis, 36 Ind. 288; Gulick v. Connely, 42 Ind. 134.

The judgment is reversed, with costs, and cause remanded for further proceedings.