195 Iowa 1324 | Iowa | 1923
I. The plaintiff is executor of the estate of George Herr Reinicker. Reinicker and the defendant were cousins, and during the lifetime of Reinicker engaged in several important business transactions with each other. Reinicker was a man of capital, and a large landholder in Hamilton County. Gish occupied and farmed a large acreage of Reinicker’s land. Gish also owned and occupied land adjoining that of Reinicker. For many years, Reinicker was engaged in improving the drainage of his lands, substantially all of which were low and wet in character. A large part of this work was done by Gish. Count 3 of the counterclaim is predicated upon the performance of a large contract of tile drainage, and the amount claimed therefor is based upon an agreed price per unit and upon a measurement of the work. The amount claimed in this count upon such basis was $6,232.27. Interest was claimed thereon from July, 1913. Issue was made by the plaintiff upon the counterclaims, and trial
*1327 “Court: I will not send the jury back to their jury room. The interest, under the evidence, would be for the period from 1912 until the present time, which amounts approximately to $2,708.95, being the discrepancy between the special findings and the general verdict, which shows upon its face that an omission has been made erroneously or inadvertently by the jury, the intention of the jury being plainly shown by their general verdict, and by the amount set forth in the answer to the fourth interrogatory. ’ ’
Later, the court did not see its way clear to adopt the course here suggested. Later, the defendant presented the affidavit of the twelve .jurors, which purported to explain the discrepancy and to recite what their finding was. Attached to their affidavit was the sheet upon which their final computation had been made. This included the item of interest, $2,708.95. This had been included in the computation of the general verdict, but had been mistakenly omitted in the answer to the fourth interrogatory. Upon the record presented, there can be no doubt whatever that the special finding to Interrogatory 4 inadvertently failed to express the real finding of the jury. Such being the case, the defendant was entitled to relief in some form. The defendant not only moved for a correction of the special finding, but in the alternative filed a motion for a new trial, upon the same ground and other grounds.
Code Section 3731 provides:
“Sec-. 3731. The verdict shall be sufficient in form if it expresses the intention of the jury.”
Code Section 3728 provides:
“Sec. 3728. When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly, or set aside the verdict and findings, as justice may require.”
The final conclusion of the trial judge was that lie had no power to interfere with the form of the verdict as rendered, and he entered judgment for the plaintiff upon the special find™§s- The judgment thus entered was, therefore, $2,708.95 in excess of the general verdict. This, of course, was a proper entry if the court was powerless to grant the defendant any relief. The power of the court to re
II. For the reasons indicated in the foregoing division, it is manifest that a reversal of the judgment below and the granting of a new trial is unavoidable. The appellant has assigned a large number of errors in the rulings of the court in the course of the trial. We take it that these are presented as an alternative, with a„ view, of obtaining a new trial even though our holdings should be adverse to him on the points considered in the preceding division. In view of our conclusion that the defendant is entitled to a new trial upon the ground first stated, we see little occasion for the consideration of the other two score errors assigned.
The appellee also has appealed, and has assigned error also upon the rulings of the court in the course of the trial. This is a law action. Unless we can say, upon the record, that one party or the other was entitled to a directed verdict upon some branch of the case, we see little occasion for consideration of the specific errors complained of by the appellee. We do not find that either party was entitled to'a directed verdict upon the’counterclaim