Sleight v. Henning

12 Mich. 371 | Mich. | 1864

Campbell J.:

Plaintiff brought replevin for a quantity of apples, and 894 barrels were seized upon the writ. It became a question whether certain apples included in this amount, and which were bought on one day, could be identified and distinguished from the rest; and the question of title also became material. ' The defendant Henning was a witness, and claimed title to a portion of the apples replevied. Having testified that he was ¡resent when the apples were replevied, he was asked whether one George Webster at that time pointed out to the sheriff the apples which said Webster claimed he had bought for witness; to which question he replied, “He did, he pointed out two rows, and said, these are Henning’s apples which he purchased yesterday.” The question and answer were both objected to as hearsay and incompetent.

We think it was entirely competent to show what took place during the levy, tending to show whether the sheriff was justified in taking possession of more apples than were owned by the plaintiffs. In case of a confusion of goods the right of possession is somewhat different from that existing in other cases, and if defendant or his agents took steps to enable the sheriff to distinguish the property, the fact was important. It is difficult to see how the question could be improper. It was not put to show title,, but simply to show that a claim of title was made for the purposes of identification upon the levy; and for that reason was unobjectionable. Nor do we see how it could be answei-ed without showing what was said on that occasion.’ We can not imagine that any jury would be led to finding title, in favor of any one, upon a mere assertion. Nor is there the remotest probability that a court would submit a case to them in such a way as to allow any such misapprehension. ' Cases very often arise where evidence is admissible of the claims and assertions of parties concerning the title of things in controversy, where the jury may .know the parties, and believe in their veracity,, but it would lead to no good result to hold any such proper testimony inadmissible, from a fear that the jury can not distinguish between the various issues, and are subject to a possible risk of mistaking its bearing.

It appears by the bill of exceptions, that after the case was all put in, plaintiffs’ counsel were informed by some bystander, that one of the jurors was incompetent, by reason of affinity to Henning. No step was taken to ascertain the fact, and it wa3 not brought to the notice of the Court. A motion for a new trial was afterwards made upon this ground upon affidavits showing that proof of the fact had not been before accessible. The Court overruled the motion. The case is within the principle of Bourke v. James, 4 Mich. 336, where it was held that a refusal of a new trial was no ground of exception, and that it was the duty of a party to make his objection as soon as informed of the juror’s disqualification.

It is also assigned, for error, that the verdict was improperly received and entered. When the jury came in they found as follows: “We find that Henning is the only defendant. We find for the defendant 156 barrels at two dollars — three hundred and twelve dollars,” The evidence showed the replevin of 894 barrels by the plaintiff. It being suggested that the verdict did not dispose of the balance, the foreman said they found that the remainder belonged to the plaintiffs. One of the jury thereupon intimated that he did not so understand it. Some conversation then occurred between Court, counsel and jury, when he nodded his assent, and the verdict was entered accordingly, in favor of Henning for his portion, and against him for the rest. An amended verdict was afterwards entered in form, finding Wandlass and Hoops not guilty, and in other respects corresponding with the first verdict. Neither of them assessed any damages against Henning. Judgment was entered upon the verdict, giving the plaintiffs six cents damages, and costs of suit to be taxed.

Without now inquiring whether we have any authority, as the case stands, to inquire into the propriety of the amended verdict, we think it expresses what it is evident the jury meant by their finding. Although not technical, it was entirely intelligible. Neither do we perceive any impropriety in the inquiry made of the jury as to what they found concerning the apples not belonging to Henning, nor in the method by which the assent of the juror was given, who at first was confused about the question. Jurors rarely give very formal verdicts, and such inquiries in open court are often necessary to obtain express explanations of what may generally be implied. Nor do we deem it necessary to consider whether a jury must give nominal damages to a plaintiff, against whom substantial damages are. recovered by defendant. The judgment has given them, and if erroneous, because not sustained by the verdict, it is not an error which can do plaintiffs any harm, but, on the contrary, it is in their favor.

There are no errors in the record. Judgment must be affirmed, with costs.

The other Justices concurred.