Poulson v. Collier

Opinion by Hall, J. 1. The defendant is in error in contending that the verdict was invalid by reason of the recital contained therein “under the instructions of the court.” That portion of the verdict was surplusage. “In practice the jury are not allowed to explain their reasons * * * .” Chitty’s Gen. Prac., Vol. III., p. 920. There is no pretense that the court gave an instruction directing the jury to find the verdict returned by them. This case is, therefore, not within the rule laid down in Perry v. Beard (1 Mo. 637). The words, “under the instructions of the court,” being mere surplusage, the verdict was not invalidated thereby. State ex rel. v. Knight, 46 Mo. 83 ; Ramsey v. Bader, 48 Mo. 539 ; Hancock v. Buckley, ante, p. 459. 2. The polling of the j ary was a right that either party could demand. Hubbel v. Patterson, 1 Mo. 392 ; Norvell v. Deval, 50 Mo. 272. “To poll a jury is to require that each' juror shall himself declare what is his verdict.” 2 Bouvier’s Law Dictionary. “ In practice the jury are not allowed to explain their reasons, nor are counsel suffered to ash for an explanation as to the grounds of their ter diet * * * Chitty’s Gen. Prac., Vol. III., p. 920. When in answer to the question, “Is this your verdict?” the juror said, “under the evidence it is not my verdict,” the matter should have stopped then and there. It was improper to permit the plaintiff’s attorney to enquire into the juror’s reasons for making the answer, or for entertaining the opinion expressed in such answer. Prom the eminent character of the learned trial judge and of the attorney of plaintiff, we know that no harm was intended by such a — 604 — etmrse, and it may even be that no harm was thereby done, but we cannot permit such conduct on the part of a trial court to become precedent. The only question permissible had been asked the juror. To that question he had given a plain and'intelligible answer. And there the matter should have ended. This case, under this point, is not touched by the case of Rankin v. Harper (23 Mo. 587). In that case, one juror, in answer to the question of the clerk, “Is this your verdict?” said, “It is, as far as it goes.” This answer was held not to invalidate the verdict. 3. The verdict as returned by the jury was clearly invalid, because it did not contain the amount of the debt then due. Cate's Adm'r v. Nickel, 42 Mo. 171; Burghart v. Brown, 60 Mo. 24. This fact was a material fact, and the jury alone could find it. It was improper for the court to find the amount so due and amend the verdict by inserting therein the amount so found. “ It will not be claimed that the courts can substitute their findings for those of the juries. ’ ’ Henley v. Arbuckle, 13 Mo. 211. And even though the jury, when asked by the court as to whether the verdict as amended was their verdict, assented thereto, the matter was not thereby helped. The finding of every material fact the jury must make for themselves. No one can do it for them, any more with their consent than without it. The syllabus of the case of Henley v. Arbuckle, supra, contained in the report and in the digests of our reports, is as follows: “A substantial omission in the verdict of a jury, may be supplied by the court, with their consent,so as to make it conform to their intention.” But such syllabus is not supported or borne out by the opinion. The quotation made above from the opinion in that case, is in no way modified or changed by the latter part of said opinion. The action of the trial court, in this respect, was full of danger and must not be permitted to stand as a precedent in practice. It was erroneous, and must be corrected. 4. The verdict, as amended by the court and as recorded, was for one hundred and eighty-four dollars. At — 605 — ten per cent, compound interest, the verdict should have been for one hundred and sixty-eight dollars. For the difference of sixteen dollars the plaintiff has entered a remittitur in this court. The note, described in the petition, was for one hundred dollars, payable six months afterdate, “with interest from date at the rate of ten per cent, per annum.” Judgment was asked for the said note and the balance of the interest if due. As seen, the note introduced in evidence and attached to the petition, provided for said rate of interest compounded. Under these facts the plaintiff contends that he was entitled to compound interest, and the defendant insists that the plaintiff was entitled to only simple interest. The defendant’s position is correct. Am instrument filed as an exhibit constitutes no part of the petition. Bowling v. McFarland, 38 Mo. 467, and cases cited. The note as pleaded called for only simple interest. Stoner v. Evans et al., 38 Mo. 463. A judgment rendered for an amount of damages greater than that laid in the petition is erroneous and must be reversed. Moore v. Dixon, 50 Mo. 425, and cases cited. This last rule applies as well to the rate of interest claimed in the petition as to the amount of damages alleged in the petition to be a sum fixed and certain. Otherwise, on a petition to which the note in suit should be attached, calling for ten per cent-, interest — claiming six per cent, interest, judgment could be had for ten instead of for six per cent, interest. When the damages are lumped in the petition, judgment cannot be rendered for a sum in excess of the amount named in the petition. This is certain and settled. On principle, it is equally as certain that a computation, for the purpose of ascertaining the amount of damages due the plaintiff, cannot be made on the basis of ten per cent, interest, when the petition asks that the computation be made on the basis of six per cent, interest. The remittitur made by the plaintiff was not for a sufficient sum. 5. The evidence shows that plaintiff took possession — 606 — of the Stevenson, property on December 6, 1877, and the evidence for defendant tends to show that the plaintiff took such possession under an agreement with Stevenson. to apply tb,e rents received by him to the payment of the two notes held by him against Stevenson, on the junior one of which the defendant was surety. No further or more particular appropriation of the rents than this was made by Stevenson, so far as shown by the evidence. In March, 1881, Orr instituted his suit against plaintiff and others for possession of the Stevenson property. There was evidence introduced for defendant tending to show that the plaintiff, prior to the institution of the Orr suit, had applied the rents received by him to the complete payment of one of the notes and to the very great reduction of the other. What we shall say here will be said with reference to the above facts. For, if the plaintiff was not as to the Stevenson property, as supposed above, an assignee for said purpose under said agreement, but was, as testified by plaintiff, a trustee, holding said rents in trust for the exclusive benefit of Stevenson, the defendant’s defence falls to the ground, being unsupported by the facts. And besides, plaintiff’s instractions were asked and given, not upon plaintiff ’ s evidence, but upon the theory that the property was assigned as aforesaid. It is settled law “that if there are two demands against a person, the debtor has a right to direct to which demand the payment shall be applied. But if the debtor, at the time of payment does not direct the application, the creditor may at any time apply it to which demand he pleases.” Brady’s Adm'r, v. Hill & Keene, 1 Mo. 317; The Mayor, etc., v. Patten et al., 4 Cranch. 317; 1 American Leading Cases (3d Ed.) 288, and cases cited; McCune v. Belt, 45 Mo. 181; Gartner v. Kemper et al., 58 Mo. 570. The plaintiff clearly had the right to apply the rents received by him upon either note according to his own election. Upon this point the circuit court did not err. The question is, was the circuit court right in instructing the jury that the plaintiff, as a matter of course, — 607 — had the right to apply the rents received by him to the payment of the damages and costs adjudged against him in the Orr suit ? (1) If the plaintiff, prior to the institution of the Orr suit, did, in fact, apply the rents received bv him upon the notes, he was bound by the application then made, and as made by him. Mayor, etc., v. Patten et al., supra; McCune v. Belt, supra ; 1 American Leading Cases, supra, pp. 289 and 290, and cases cited. The application by plaintiff can be shown by verbal declaration, or by an account rendered declaring the application. 1 American Leading Cases 290, and cases cited. In ignoring this rule the trial court erred. (2) While it is true that the debtor, Stevenson, appropriated the rents of his property generally to the payment of the two notes, still the appropriation by him was special as to those notes so far as any other debt due, or which might thereafter become due from him to the plaintiff, was concerned; and the election had by plaintiff was only as to which of the two notes he would first pay with the rents received by him. The plaintiff could apply the rents on no other debt of Stevenson’s than those notes. If it be true that at the time of the institution of the Orr suit, the plaintiff had made no application of the rents, up to that time received by him, upon the notes or either of them, then the trial court should have made such application. The plaintiff cannot be permitted, by a failure to make the application called for by the contract of assignment to him of Stevenson’s property, to defeat the very object of that assignment. Stevenson made no particular appropriation on either note. If the plaintiff, prior to the institution of the Orr suit, made no particular application of such rents on either note, it was the duty of the trial court to make such application of those rents received by plaintiff up to that time. The court should have made such application first upon the note on which the defendant was not a surety. This should have been done under the rule laid down by Bliss, J., in the case of McCune v. Belt, supra, that — 608 — the application should first be made upon the debt first maturing. And this should have been done, also, under that rule, which is more satisfactory to us and better supported by reason and authority, that where the money has been voluntarily paid by the debtor, and no particular appropriation made by him, and no particular application made by the creditor, the court should first make the application upon the debt whose security is most precarious. Field v. Holland, 6 Cranch. 8-29, opinion by Chief Justice Marshall; 1 American Leading Cases 292, 296, and cases cited. In making the application the court should have given effect to it, as if made at the time at which the rents became payments. 1 American Leading Cases 287. The rents became payments when their amount, in plaintiff’s hands at any time, exceeded the amount expended by him in repairing the property, and a reasonable sum for his services in caring for the property up to said time. If, after having so applied those rents upon that note, there had remained a balance, the court should have applied it on the other note, the note in suit. For this reason, also, we think that the court erred in instructing the jury. The judgment of the circuit court is reversed and the cause is remanded. All concur.