40 Ind. 106 | Ind. | 1872
This action was commenced by the appellee against the appellants. Its object was to recover on two certain promissory notes executed by the defendants to the plaintiff. The notes were given in consideration that the plaintiff would enter the military service as a substitute for -Anthony Wisler, who had been drafted for one year. The notes were for five hundred dollars each. There were paragraphs in the complaint besides those based upon the promissory notes, but we need not notice them more particularly, as the verdict of the jury was upon the paragraphs setting up the notes. The defendants had paid the plaintiff two hundred dollars on the notes, in property. The ground of defence was, that the plaintiff had not been received, and did not serve as the substitute of the drafted party. The jury found for the plaintiff a general verdict, and found, also, in answer to certain questions submitted to them, as follows: “We, the jury, find for the plaintiff, and assess his damages
t “ 1st. Was it not the contract between the plaintiff and the defendant Anthony Wisler, that the plaintiff should be accepted, at Kendallville, as a substitute for the defendant Anthony, and should thereby procure the release of said Anthony from the draft, and in consideration therefor the defendant would pay to the plaintiff one thousand dollars, as evidenced by the two notes in suit, and defendant Anthony would pay him the further sum of ten dollars cash? Answer. No; the contract was, that the plaintiff was to be accepted as the substitute of the defendant.
“ 2d. Was not the plaintiff so duly accepted at Kendall-ville, and the defendant Anthony thereby released from the draft, in pursuance and performance of said contract? Answer. No; he, the plaintiff, was accepted at Kendallville, but rejected at Indianapolis.
“ 3d. Was not the plaintiff duly mustered into the service of the United States as a soldier and as a substitute of the defendant Anthony Wisler? Answer. No.
“4th. Did not the plaintiff] at all times, hold himself in readiness to serve, and subject to the orders of his superior officers as a soldier, from the time of his acceptance as a substitute of defendant Anthony, until his final discharge, about the last of May, 1865? Answer. No; the plaintiff was subject to orders as a soldier from the time he enlisted at Kendallville until his rejection at Indianapolis.
“ 5th. Did not the plaintiff’s father have full knowledge, at the time, of his going into the army as the substitute of defendant Anthony, and consent thereto? Answer. Yes.”
The interrogatories propounded to the jury, at the in
“ist. Was the defendant Anthony on or about the month of October, 1864, drafted for oné year’s services in the army of the United States? Answer. Yes.
“2d. Did said Anthony employ the plaintiff' to go as his substitute in said service, and agree to pay him therefor ten dollars cash in hand, arid give him the riotes in suit, with the defendant John’s name thereon as surety, the notes to be delivered to plaintiff’s brother, on the acceptance of. the plaintiff as such substitute? Answer. Yes.
“3d. Did the plaintiff appear at Kendallville, Indiana, on or about the 4th of November, A. D. 1864, and there be examined and accepted by the board of enrolment as such substitute? Answer. Yes. »
“4th. Did plaintiff, on the same day he was so examined and accepted at Kendallville, return home to Elkhart county, and afterward, having returned to Kendallville, was he there, on or about the 9th day of November, 1864, mustered as a substitute of said Anthony? Answer. Yes.
“5th. Were said notes delivered to the brother of plaintiff a day'or two after his exaihination at Kendallville? Answer. Yés.
“'6th. Was plaintiff sent forward from Kendallville to the general rendezvous at Indianapolis, after his muster át Kehdallville? Answer. Yes.
“ 7th. Was plaintiff at Indianapolis subjected by the military authorities at Indianapolis to another examination as to his physical fitnéss for the service, and as the result of that examination, told that he had better go home; and, was he on the same day given a paper, called or spoken of by hiriiself and others as a discharge furlough, and sent or permitted to go out of the cainp and return hoihe? Answer. Yes.
“ 8th. Did he return hbme and ferhain at home, going, in the mean time, to school, of engaged in common labor foi his father, or others, until about the last of May, 1865, and
“gth. Was plaintiff away from home as much as twenty days in all his trips to Kenclallville and Indianapolis, made in pursuance of his agreement to, go as a substitute of defendant Anthony? If more than twenty days, state how many days. Answer. No; the plaintiff ivas away eighteen days.
“ 10th. Has the defendant Anthony paid plaintiff on said notes two hundred dollars in. money or property as payment? If not two hundred dollars, then how much has he paid? Answer. Yes.
“nth. Was the defendant Anthony, at the time he was drafted, able-bodied and fit for service? Answer. Yes, he was so declared at Kendallville.”
The defendants moved the court for judgment in their favor on the special findings, but the motion was overruled, and the court rendered judgment for the plaintiff for the amount of the verdict. The correctness of this ruling is the only question presented for our decision. If the special findings are inconsistent with the general verdict, they control the general verdict, and the court should give judgment on such special findings, and not on the general verdict. 2 G. & H. 206, sec. 337.
A majority of the court think that the action of the court was correct in rendering judgment on the general verdict. The writer is, however, of a different opinion. The general verdict was apparently a mere effort to compromise.the controversy between the parties, which the jury had no right to do. As the defendants agreed to pay ten dollars in cash down, and the amount of the two notes for five hundred dollars each, and had paid only two hundred. dollars of the amount, the general verdict, if for the plaintiff at all, should have been for eight hundred and ten dollars, with any interest due on the notes, and not for one hundred dollars only. But the writer is clearly of the opinion that the plaintiff Ayas not entitled to recover at all. He was never fully accepted
The judgment is affirmed, with costs.