Nathan v. Sloan

Harrison, J. This was an action by M. Sloan against Henry Nathan, J. C. Meyer and Sol. Meyer, Jr., indorsers upon the following instrument of writing : “Pine Bluer, Ark., August 15, 1874. “ Ninety days after date I promise to pay M. Sloan 'the sum of seven hundred and fifty dollars — being balance of purchase money of five-twelfths (5-12) interest in the steamer ‘ Ella Plughes;5 and it is hereby further provided that this note is only valid and of force after expiration of ninety days, when said M. Sloan will make full title to me; and any claims arising against his five-twelfths interest in said steamer ‘Ella Hughes,5 shall be an oif-set against this note. John Clacomb.55 The indorsements were in blank, and made at the time of the execution of the instrument; and it was alleged in the complaint that the indorsements were a part of the consideration upon which the sale, mentioned in the instrument, was made. It w.as also alleged that the plaintiff', within the time stipulated, made Clacomb a good title to the part of the steamer sold him, and delivered the steamer to him; and that, when the debt fell due, payment was demanded of him, and notice of its non-payment given the defendants. The defendants, in their answer, denied that the plaintiff had made Clacomb a good title; and averred that by his failure to do so, the steamer had been taken from him to satisfy a claim against her, existing at the time of his purchase, and that the consideration for which they indorsed the instrument had failed. The trial was by the court, which found in favor of the plaintiff. The defendants moved for a new trial, which was refused, and judgment was rendered against them for the debt and damages. The defendants appealed. The only grounds for a new trial, assigned in the motion for it, were: that the court did not state, in writing, its conclusions of fact found, and that the finding was against the law and evidence. After the motion for a new trial was filed, the court, as its conclusions of fact, found the following: “ The court finds the facts as stated in the complaint; and finds for the plaintiff the sum of seven hundred and fifty dollars for his debt, and the further sum of one hundred and thirty-five dollars for interest on the same.” Tlie findings of the court may be reduced to writing after the judgment. Apperson & Co. v. Stewart, 27 Ark., 619; Insurance Company v. Boon, 5 Otto, 117. Its conclusions of fact found, are in the nature of a special verdict. Obermier & Co. v. Core, Thompson & Co., 25 Ark., 562; Woodruff v. McDonald et al., 33 Ark. A special verdict is a special finding of the facts of a case; the design of which is to submit the questions of law arising upon the matters of fact specially found, to the consideration of the court, and must state the facts as proved, and not the evidence of them; and must leave no room for presumption. Bac. Abr. Verdict, (D); Gantt’s Digest, sec. 4678. There may be some question whether the finding in this case was a special or a general one; but we have no occasion to consider it, for, if not special, or such as the law requires, the defendants, if they had wished, could have required it to be made such; and this court will not reverse a judgment for an error, which might have been corrected on motion in the court below, unless motion has been made there and overruled. Sec. 1100, Gantt’s Digest. There was but one issue in the case, and that was upon the averment in the complaint that the plaintiff had made title to Clacomb to the shares or part of the steamer sold him; and the only evidence in the case was the plaintiff’s deposition. He testified that he had, when he sold the five-twelfths of the boat to Clacomb, a clear title to, and there was no lien on, or claim against the same; and that he made him, through the custom-house at Nashville, within ninety days from the date of the instrument, a good title thereto. The evidence sustained the finding. The defendants were not guarantors; they became, by their indorsement of the instrument at the time of its execution, and upon the same consideration for which Clacomb executed it, joint makers with him, the same as if they had written their names under his upon the face of it; writing their names upon the back, did not change the nature of their liability; it was not the making of a new contract, but simply becoming sureties in that then being-made. Killian v. Ashley et al., 24 Ark., 511; Nelson v. Dubois, 13 Johns., 175; Moies v. Bird, 11 Mass., 436; Rey et at. v. Simpson, 22 How., 341; Burton & Co. v. Hansfield et al, 10 West Va., 470; 1 Pars. on Con., 244. The judgment is affirmed.