18 Kan. 195 | Kan. | 1877
The opinion of the court was delivered by
The parties to this suit made the following contract:
“It is agreed between John P. Usher, O. S. Hiatt and C. F. Maris, as follows: Said Hiatt & Maris agree^to reset, cultivate and complete the hedges upon sections 23 and 24 of township 10, range 22, in Leavenworth county, and section 19, in Wyandotte county, immediately east of said sections, which were undertaken to be grown by A. S. Penfield; to cultivate and maintain said hedges in a skillful manner, until the same shall be sufficient to turn orderly stock, and such as is contemplated by the laws of Kansas relating to hedge fences. The above sections of land belong to said Usher, and the hedge, when completed, will divide these lands into quarter-sections. In consideration of this agreement to construct, and the construction of said hedges for the said Usher, he agrees to and with the said Hiatt and Maris that if they shall have said hedges set and reset in good and proper condition, and in proper cultivation, on or before the 1st day of July next, 1871, the said Usher will pay them at that date one thousand dollars; and if the said parties continue to cultivate and maintain said hedges, as before agreed, said Usher will pay them five hundred dollars on the 1st day of July 1872, and upon the completion and turning over of said hedges to said Usher, he will pay them one thousand dollars, or the third thereof on the completion of the hedge upon a section, as the 'case may be. If it shall then happen that in consequence of rains the parties cannot put all of said hedges in good condition by the 1st of July next, as above agreed, then said Usher will pay the $1,000, as soon as the hedges are in such condition; and the parties mutually agree with each other, that the said Hiatt & Maris will set and reset and cultivate said hedges as aforesaid without any delay on their part, and said Usher will promptly and faithfully pay them as agreed herein. J. P. Usher, O. S. Hiatt, C. F. Maris.
“Leavenworth, Kas., Nov. 5, 1870.”
Question A-Did they, the plaintiffs, continue to properly cultivate and maintain the hedge until July 1st 1872? Ams.-No.
Ques. A — What is the value of the hedge plants furnished, and labor bestowed, by the plaintiffs, in cultivating the hedge where practicable to cultivate and grow the same? Ans-Don’t know.
Ques. A-By what time ought the plaintiffs to have com*200 pleted the hedge, so as to be sufficient to turn stock? Ans-Don’t know.
Ques. A — If y°u find they hadn’t done so, by what time, after waiting a reasonable time for plaintiffs to complete it, could defendant complete it himself? Aits.-Don’t know. None.
Ques. A-During the interval between such times, what damage did or will defendant suffer in consequence of the hedge being insufficient? Ans.— None. Don’t know.
Ques. 6.— Or, during such interval, by loss of rental, or other direct consequences of plaintiffs not completing their contract? Ans.-None.
Ques. 7. — What would be the cost of constructing a fence to take the place of the hedge at points wherein the plaintiffs have not attempted the growth of any hedge? Ans — Don’t know.
The transcript then states that—
“The jury having been out for about twenty-four hours, and their answers being as above, the court entered into a colloquy with the jury which resulted in the court taking the verdict into its own hands, and striking out the answer of the jury to the second question, and writing for the answer of the jury thereto, ‘$584.55 in addition to the $1,000 paid by the defendant in August 1871.’ The court also struck out the answer of the jury to the third question, and wrote thereunder, ‘Five yéars from date of contract.’ The court also struck out the answers of the jury to the fourth question, and wrote thereunder, ‘By May 1876.’ The court also struck out the last two words of the answer of the jury to the fifth question. The court also struck out the answer of the jury to the seventh question, and wrote thereunder, ‘There were no such places, except where the hedge crossed running streams.’ And the court at the same time wrote the following questions and answers thereto:
“Question: Did the defendant take possession of the hedges, and put an end to the contract? Answei — Yes, about the first of May 1874.
“Question: Did the plaintiffs continue to cultivate the hedge up to May last? Answer — -Yes, but not as well as they should.
Which questions and answers were submitted to the jury, and the jury without retiring or consultation, other than as above stated, signed' the same by their foreman, which the court received as the verdict- of the jury, and discharged them.”
*202 “It will be seen that by the decision of the court in overruling defendant’s motion, the plaintiffs had a sort of a double-barreled affair. In the same paragraph of their petition they are claiming to recover on a contract performed, and for work and labor bestowed in performing such contract. The action of the court permitted the plaintiffs to have an undue advantage. The court ought to have required plaintiffs to have tendered the issue directly upon the performance of the contract, or upon the quantmn meruit. This was error.”
We cannot agree with the learned counsel. By the code, the rules of pleading heretofore existing in civil actions have been abolished. Technical issues have been set aside. Where the plaintiff claims he has a right of action against a defendant, he must state the facts in his petition on which he .grounds his right of action. These are to be stated in ordinary and concise language, and without repetition. The defendants in error having set forth, within the meaning of the code, a statement of the facts constituting their cause of action, and as the allegations of the petition were sufficiently definite and certain to fully inform the plaintiff in error of the precise nature of the charge against him, the court committed no error in refusing to compel them to inform him whether they were seeking to recover the contract-price for the performance of the contract, or on a quantum meruit outside of ■the contract.
III. The jury retired to consider of their verdict on the 3d of December 1874, and the next day returned into court with a verdict as follows: “We the jury find for the plaintiffs the sum of $500, with interest from Julylst 1872” — :and reported that they were unable to agree upon the questions submitted by the court to be answered by them. The court thereupon instructed them to return a verdict for the amount of $500, and to include the interest from July 1st 1872, and ordered the jury to retire and bring in the verdict as directed, and to answer the questions submitted. The jury on the, same day rendered the following verdict: “We the jury find for the plain
Under the contract Hiatt & Maris were to have $500 on July 1st 1872, in addition to the prior sum of $1,000 paid in August 1871, if they continued to cultivate and maintain the hedge as agreed upon until that time, not otherwise. In their findings upon the questions of fact, the jury in answer to the question, “Did they, the plaintiffs, continue to properly cultivate and maintain the hedge until July 1st 1872?” said No; and to the question, “What is the value of the hedge plants furnished and labor bestowed by the plaintiffs in cultivating the hedge, where practicable to cultivate and grow the same?” answered, “Don’t know.” If these findings had been permitted to stand, the judgment, subsequently entered upon the general verdict, would have been inconsistent therewith. It is evident that the jury intended the verdict of $584.55 to be for the installment due July 1st 1872, with the interest on the $500, from that date; but as they found that Hiatt & Maris had not properly continued to cultivate and maintain the hedge until that time, the $500 could not have been due on July 1st 1872, and hence the verdict of $500, with interest thereon from July 1st 1872, could not be supported on said findings. It appears however that the 9ourt below must have noticed the difficulty of rendering judgment for the $584.55 in opposition to the said special findings of fact, as it thereafter changed the answers as above stated, and also wrote the two additional questions and answers set forth in the statement of facts of the case. The answers thus changed were very material, and the new questions of fact, with the answers written by the court, were equally important. The evidence as to the findings of fact returned by the jury, prior to the changes made by the court in the verdict, is not brought here with the record, but it seems to us impossible that the evidence on the particular questions submitted to the jury, and the answers which were afterward modified by the court, was all one why, as the jury, after having been out about twenty-four hours, answered to the
As to the question, “Did the defendant take possession of ■the hedges, and put an end to the contract?” and, the answer thereto written by the judge, the record presents all the evidence, pro and con. It makes over twenty pages of manuscript; and after reading it carefully, we cannot say that the answer is conclusively proven. If the question was a proper one to have been submitted under the pleadings, the jury should1 have been permitted to have taken it to their jury room, and to have then passed upon it, free from any order, influence, or intimation of the court. The act of the court in writing the interrogatory respecting the taking possession of the hedge, and the answer of the jury, was not justified by the record, and was manifest error. The evidence is not all one way upon the point, and there was in fact no submission of the question to the jury. The jury already had had several of their answers erased, changed and modified by the court; and when, under such circumstances, the court wrote out the question and answer, and handed them to the jury, the latter body only obeyed the direction of the court in signing the same through their foreman. There was no fitting consultation, no retiring to deliberate thereon, no real agreement thereto. The dictation of the court was as patent as if an order had been issued, requiring the facts to be found by the jury according to the dicta of the court. The only matter causing serious trouble in the case, owing to the condition of the record, is, whether the action of the court, in thus presenting to the jury the question and the answer already written, affected the substantial rights of the party complaining. As the jury originally returned their verdict for the full amount of the second installment, with interest from July 1st 1872, and afterward, upon the changes and modifications of the court, to undo the fatal finding of the jury under which said sum was not due on July 1st 1872, a verdict was rendered
Other errors are alleged, but as they may not arise in a new trial of the case, we do not think it necessary to refer to them.
■ The judgment will be reversed, and the case remanded for a new trial.