| S.C. | Feb 23, 1889
The opinion of the court was delivered by
The plaintiff, appellant, brought action to recover possession of an ox named Dob, from the defendants, respondents. The plaintiff claimed title and the right to possession under a mortgage, executed by the defendant, Wilson, with condition broken. It seems that Wilson, at some time previous to purchasing Bob from the plaintiff had bought a mule from plaintiff at $50 — $25 in cash and the remainder on a credit. Shortly after the purchase, Wilson becoming dissatisfied with the mule, and claiming that he had been deceived in the trade, returned the mule. The plaintiff then sold Wilson the ox Bob at $35, retaining the $25 paid him in the mule trade, and took a mortgage on Bob for the remaining $10, which not being paid when due, the action below was brought before a trial justice to recover Bob.
Wilson and Williams, defendants, being in possession, answered, first by an original answer, stating the circumstances of the mule trade, and alleging misrepresentation and fraud therein; and then by an amended answer, stating the circumstances under which Bob went into the possession of Wilson, alleging that Bob was older than represented by plaintiff; that Wilson had to take him or nothing for the $25, and that plaintiff compelled him to sign the bill of sale or mortgage; that in “consequence of the
There were two trials before the trial justice and a jury, both of which resulted in a verdict for the defendants (a new trial having been granted in the first trial). The trial justice overruled the demurrer, holding that though the answer was defective, yet there was enough therein to warrant him in sending the case to the jury. The plaintiff appealed to the Circuit Court, his honor, Judge A. P. Aldrich, presiding, who dismissed the appeal, as follows: “On motion of M, C. Galluchat, attorney for respondents, it is ordered, that the appeal in the above stated case be dismissed, with costs to respondents.” The plaintiff appeals to this court upon the following exceptions:
“1. Because, it is respectfully submitted, the presiding judge erred in not sustaining the first ground of appeal to the Circuit Court, to wit: ‘That the trial justice erred in overruling the demurrer to the last amended answer of the defendant, made by plaintiff, on the ground that the same did not state facts sufficient to constitute a cause of defence.’
“2. That, as it is respectfully submitted, the presiding judge erred in not sustaining the grounds of appeal to the Circuit Court, to wit: ‘That the trial justice committed error in admitting, over plaintiff’s objections, evidence that the property in dispute belongs to defendant Wilson’s wife, when no such defence was set up in the answer.’
“3. That, as it is respectfully submitted, the presiding judge erred in not sustaining the ground of appeal to the Circuit Court, to wit: ‘That the trial justice erred in refusing the request of the plaintiff to charge the jury, that in finding their verdict they are not to consider as any part of the evidence the first transaction between the parties, to wit, the mule trade.’
“4. That, as it is respectfully submitted, the presiding judge erred in not sustaining the ground of appeal to the Circuit Court, to wit: that the trial justice erred in refusing the request of the plaintiff to charge the jury, ‘That in order for the defendants to*175 sustain the defence of duress to the contract, if they received anything of value, they must show that they returned it, or at least offered to do so; and that if Wilson sat quietly enjoying the fruits of the contract until the ox was seized under this proceeding, then by his silent conduct he has ratified the contract, although in the first instance it may have been made under duress.’
“5. That, as it is respectfully submitted, the presiding judge erred in not sustaining the grounds of appeal to the Circuit Court, to wit: ‘That the trial justice erred in refusing the request of the plaintiff to charge the jury, that the facts proved neither established fraud or duress, the grounds of the defence, and the verdict must be for the plaintiff.’
“6. That, as it is respectfully submitted, the presiding judge erred in not sustaining the ground of appeal to the Circuit Court, to wit: ‘That the tidal justice erred in refusing the plaintiff’s motion for a new trial, when the verdict of the jury was against the facts, the law, and a travesty of justice.’ ”
Exception 1st complains that plaintiff’s demurrer was not sustained. It must be remembered that this was an action before a trial justice, where strict technical pleading, such as it is proper to observe and practise in the higher courts, is not required— where no particular form is necessary, “but must be such only as to enable a person of common understanding to know what is intended.” Code, § 88. Now, the object of the action was in substance to foreclose a mortgage which the plaintiff' held on the ox for $10. The defence was in substance, in part, a failure of consideration on account of misrepresentation as to the age of the ox, and fraud and duress in obtaining the mortgage. True, something more as to the alleged duress, the facts and circumstances thereof, would have been required in a case before the Court of Common Pleas perhaps; but in this inferior court, was there not enough stated to enable the plaintiff to know what was intended ? We think so.
This case is different from the recent case of Talbott & Sons v. Padgett, ante 167. Here the plaintiff’s right to stand on his mortgage is denied: 1st, because the consideration has failed; and 2nd, it was obtained through duress and fraud, and cancellation was asked. There the validity of the mortgage was not
As to the 2nd exception. It may be that the testimony offered and admitted there was irrelevant, and therefore incompetent; but we think it must have been entirely harmless. It could have had no effect upon the jury, as the verdict shows.
3rd exception. The trial justice was right in not ruling out the testimony in reference to the mule trade. It was the mule trade which finally caused Bob to change hands, and the character of that transaction threw some light, more or less, upon the ox trade.
The request to charge, which is the foundation of 4th exception, even if containing a sound proposition, would not have been proper here. The defendant’s defence was, in substance, that the plaintiff in the $25, which he retained in the mule trade, had already paid himself for the ox, and therefore he had nothing to return. Nor could the judge, under the circumstances, have charged that the holding on to the ox was a ratification of the trade. The defendant in his answer said it was the ox or nothing for his $25.
5th. If the trial justice had charged as requested in the 5th exception, he would have been expressly invading the province of the jury.
6th. The matter of a new trial refused by the tidal justice and sustained by the Circuit Court, involving the facts only, is not reviewable here.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.