Struckman v. Brown, File No. 4988

File No. 4988 | S.D. | Nov 4, 1921

WHITING, J.

Plaintiff alleged that, at the request of defendant and under a promise by her to repay him, he did pay out, part for her benefit and part for the benefit of a third party, five certain sums of money aggregating $275.30; that this money, together with interest thereon at 10 per cent., was to be repaid within three months; that no part 'had been repaid. Defendant pleaded a general denial; pleaded a'specific denial that she made the agreement alleged by plaintiff, ever borrowed any money from him, or ever agreed' to pay him any interest; and alleged that the moneys which plaintiff claimed were paid out for her benefit, were paid in consideration of her accompanying plaintiff to Minneapolis and with the understanding that defendant was not to repay the same. The cause was tried before a jury, which returned the following verdict:

“We, the jury * * * find for the plaintiff upon all the issues, and assess his damages at the sum of-: — —dollars.”

[1] Plaintiff moved for judgment. Defendant objected, among other grounds, upon the ground that such verdict was incomplete—it did not comply with the provisions of section 2521, R. C. 1919; and that, because thereof, the court was without jurisdiction to render judgment. The court overruled the objection, and rendered judgment for $273.10 and costs. From such judgment defendant has appealed, assigning error in the overruling of the objections to the rendition of such judgment, and in the rendering of any judgment on such verdict. Respondent contends the assignments are insufficient to present any question on appeal. In this contention he is clearly in error.

Said section 2521 provides that:

“When a verdict is found for the plaintiff in an action for the recovery of money, * * * the jury must also find the amount of the recovery. * * *”

[a] It is clear that this verdict was incomplete; but respondent contends it should stand: s(a) Because there was no issue in the pleadings as to the amount plaintiff was entitled to recover, if entitled to recover at all; and (b) because it must foe assumed, in support of the trial court’s action, that the evidence was such as to have warranted the trial court in directing a verdict for the amount of the judgment, and that, because of that fact, the court did not err in rendering such judgment.

In support of the first contention, respondent relies upon the case of English v. Goodman, 3 N.D. 129" court="N.D." date_filed="1892-12-23" href="https://app.midpage.ai/document/english-v-goodman-6734404?utm_source=webapp" opinion_id="6734404">3 N. D. 129, 54 N. W. 540, decided by the Supreme Court of our sister state under a statute identical with said section 2521. That this case is not in point is disclosed by the opinion, wherein it is stated that:

“In this case, under the pleadings, the trial court would have been fully wararnted in instructing the jury that, in case they found the plaintiff entitled to recover, they should fix the amount of his recovery at $50 [the amount of the judgment entered by the court.]”

It thus appears that, in that case, the pleadings aided the verdict; in this case they do not, as there is a clear issue not only as to agreement, but also as to amount plaintiff is entitled to recover even if agreement was as claimed by him. Moreover, the amount of the judgment as rendered is not the same as the amount sued for. The case now before us is, in its facts, like that of Sonnesyn v. Akin, 14 N.D. 248" court="N.D." date_filed="1905-05-20" href="https://app.midpage.ai/document/sonnesyn-v-akin-6735656?utm_source=webapp" opinion_id="6735656">14 N. D. 248, 104 N. W. 1027, also decided by the Supreme Court of our sister state, wherein a judgment on findings of the jury, which were incomplete 'because they failed to find the amount which plaintiff was entitled to recover, was set aside. The court held that this was not a general verdict under the above section, because it omitted to find any amount; and that it was equally essential that a- special verdict find the amount. The court said:

“In this case the omission is fatal, and cannot be supplied by reference to the pleadings.”

So it is in the case at bar, the omission “cannot be supplied by reference to the pleadings.”

The omission is therefore fatal unless respondent is correct in his contention that this court must assume, in support of the judgment, that the evidence was such as to have warranted the trial court in directing a verdict for the amount of the judgment. The trial court did not direct a verdict, and the judgment rendered does not purport to stand upon any finding of the court that the evidence is undisputed, but recites that the plaintiff introduced “evidence in support of his cause of action;” that the defendant introduced “evidence in support of her defense;” that the jury “returned a verdict, the material part of which is, * * * 'We, the jury, * * * find 'for the plaintiff upon all the issues;’ ” that it was upon such verdict that judgment was moved; and that such motion was granted. It clearly appears that the trial court rendered judgment upon the theory that the verdict was a sufficient verdict. If there had been a recitation 'in such judgment reciting that it was undisputed under the evidence that plaintiff had expended the amount of the'judgment, thus removing, any issue thereon, there might be some claim that the verdict covered the other issues, and that the judgment should-stand.

The judgment appealed from is reversed.

McCO'Y, J., not sitting.