Merony v. . McIntyre

Dillard, J., after stating the case. The error assigned questions the right of the court below under the established rules and practice of the courts to grant a new trial as to one of the issues, leaving the verdict to stand as to the others. It is not necessary that we go into the inquiry whether the change of the finding from a negative to an affirmative response on the second issue by the jury in consequence of the conversation of one of the jurors with the plaintiff’s counsel, and on suggestion to that effect, vitiated the verdict and required the court as a matter of law to set it aside in Mo, or was a matter of such weight merely as His Honor might give to it in the exercise of his discretion in passing on the motion for a new trial. We are of the opinion, whether the change of the verdict under the circumstances vitiated it or not, His Honor, as he decided to set it aside, should have done so and granted a new trial generally, and not restricted it to the second issue only. . It is settled that a court may in some cases grant a partial new trial, and the rule on the subject as established by the *106 decisions of this court, is, “that if the jury omit to find a matter which goes to the point of the issue, the new trial must be in toto, but when all the material issues are found correctly and the error does not touch the merits, the court may award a writ of inquiry or a restricted new trial to correct the error.” Holmes v. Godwin, 71 N. C., 306, and the authorities there cited. In this action there were three essential facts in the plaintiff’s cause of action, to wit, the purchase and payment for the land by McIntyre out of his own means, the procurement of title to be made by West to Finger without valuable consideration proceeding from her, and the insolvency of McIntyre at the time of the conveyance. It took all three to constitute a case for the plaintiff, and the non-existence of either one of the facts, if so found,-was fatal to the action. The absence of a consideration paid by Finger was essential to plaintiff, equally with and not more than the other facts; and the jury as to this important fact involved in the second issue in their first verdict in effect found that there was a consideration, which entitled Finger to judgment; and in their second verdict they found in substance that there was no consideration, and on this and the other findings the plaintiff was entitled to judgment. Evidently, then, the new trial granted of the second issue was on a point which not merely touched the merits of the action, but was its central point, without which and the other facts in his favor the plaintiff could not recover. Applying the rule established in Holmes v. Godwin, the new trial granted should have been entire and not limited to this single issue. According to the case of appeal the court found as facts that the jury in their first verdict delivered to the clerk by consent of parties found the second issue in favor of the defendant, Finger, and were discharged and dispersed, and that in consequence of a conversation of a juror with the plaintiff’s counsel, the jury were got together and again re *107 tired upon the issues, and on their second verdict found the same issue differently. Upon these facts His Honor, from a suspicion that the changed verdict on the second issue was influenced, or may have been, by the conversation of the juror with the plaintiff’s counsel, awarded the new trial to the extent of that issue; but the jury in their second verdict resDonded on the other issues as well, and if in preservation of the purity of jury trials it was proper to set aside the verdict at all, it should have extended to the whole case. We declare our opinion to be that the court was in error in granting a new trial restricted to the second issue merely, and that it should have been of all the issues. The judgment is therefore affirmed as to the grant of a new trial of the second issue, and reversed in so far as it refused a new trial of the other issues in the cause. Let this be certified. Error. Reversed.