Winn Bros. & Baker, Inc. v. Lipscomb

Sims, J., after making the foregoing statement, delivered the following opinion of the court: There are three assignments of error which will be considered and disposed of in their order as stated below. 1. That the trial court erred in giving instruction (2), copied above, in that it instructed the jury, in substance, to find for the plaintiff, without consideration of the theory [559] of the defendant that the plaintiff was in default in the discharge of his duty to exercise proper care to see that the apples when bought and shipped were in proper condition and properly graded and packed, which rendered the instruction fatally defective—citing a number of authorities on this subject; and that for this reason also the instruction was misleading. [1, 2] There is, of course, no question about the law, that if instructions, in substance, direct a verdict, upon a partial and inadequate statement of facts, they are erroneous. But the instruction (2) objected to does not itself direct a verdict. It is only by the two instructions that it can be said that a verdict is directed. Hence, in considering upon what facts found a verdict is directed, both the instructions given in the case in judgment must be read together,. and when so read it is manifest that the consideration of the theory of the defendant that the plaintiff was in default in the discharge of his duty in the premises was not withdrawn from but was submitted to the jury, Instruction (1) expressly submitted that issue to the jury. [3] 2. That the trial court erred in giving instruction (2) because it is not supported by the evidence, in that the evidence in the case of the plaintiff himself is (M. R., p. 12) that “I was" to use my own judgment in determining whether the apples were good or bad,” and again, on the same page, that “I used by own judgment;” and that, therefore, the jury could not properly have “ ‘believed from the evidence that Rush Lipscomb purchased for Winn Bros, and Baker the apples set out in the account filed with the declaration in this case after he had fully disclosed to Winn Bros, and Baker the quality of the apples to be purchased, and had been 'fully instructed so to do by them,5 because such is not the evidence in the case/5 Now it appears from the record that the matter about which the plaintiff testified that he used his own judgment [560] was not whether he should or should not purchase the apples in question, but that he used such judgment with respect to whether the apples were good or bad, and their quality and condition, both before and after they were being packed. That is to say, that his report to the defendants of the kind and quality of the apples before he bought them was based' on his judgment on the subject and his accepting them after inspection was based on the same exercise of judgment. And the plaintiff expressly testified, as outlined in part in the statement preceding this opinion, that before buying the apples in question he specifically informed the defendant of what was the quality of the apples (as determined, of course, by the plaintiff's judgment on the subject, based on his experience in the premises); that the defendant thereupon sanctioned and authorized the purchase, which was accordingly made; and that, moreover, the apples, on inspection by the plaintiff before they were shipped, proved to be all that he represented them to the defendant to be at the time the latter gave the special authority to the plaintiff to purchase them; and that they were properly packed and shipped, etc., etc. We are therefore of opinion that there was ample evidence to support instruction (2). 3. The remaining assignment of error is that the verdict is fatally defective, in that it does not respond to the issue joined on the special plea of recoupment, but only to the general issue. The following authorities are cited and relied on for the defendant to süstain the position of this assignment of error, namely: Hite v. Wilson, 2 Hen. & M. (12 Va.) 268; Brown v. Henderson, 4 Munf. (18 Va.) 492; Danville Bank v. Waddill, 27 Gratt. (68 Va.) 448; Gawk v. Millovich (Mo. App.), 203 S. W. 1006, and State v. Friedley, 73 W. Va. 684, 80 S. E. 1112. [4] It is, of course, elementary law, that a verdict, to [561] be valid, must dispose of all the issues in the case wflich affect the correctness of the verdict; and that, if it appears from the record that it is uncertain whether the verdict responds to all of such issues, it is invalid. In all of the cases next above mentioned, except that of Danville Bank v. Waddill, the verdict was a special verdict from which it affirmatively appeared that the verdict responded to only one of two issues in the case which affected the correctness of the verdict. In Danville Bank v. Wad-dill there was a general verdict. The subject we have under consideration was, however, only collaterally involved in that case. It arose in this way. There were pleas of payment and a plea of the statute of limitations interposed by the .defendant. The court below erroneously practically instructed the jury that the plea of the statute of limitations was a good defense to the action. The jury found a general verdict for the defendant. On appeal counsel for the defendant took the position that the error of the trial court on the subject of the statute of limitations was harmless, since without that plea the verdict would have ' been, and indeed, was in favor of the defendant on the issue of payment, because being a general verdict it responded to all of the issues in the case. On this subject the opinion of the court delivered by Judge Staples, says: “The defect in this argument is in assuming that a general verdict is necessarily a finding upon all the issues in favor of the party for whom it is rendered. It is certainly more regular in practice, and in some cases it is essential that the finding shall respond to all the issues. The cases of Hite’s Heirs v. Wilson, 2 Hen. & Mun. (12 Va.) 268, Jones’ Ex’rs v. Henderson, 4 Munf. (18 Va.) 492” (above mentioned), “furnish illustrations of this rule. In the latter case issues were joined on the pleas of payment and fully administered; the jury found for the defendant ‘he having fully administered.’ A judgment on this verdict was reversed by this [562] courf, on the ground that the issue on the plea, of payment had not been tried. The reasons upon which the decision was based are too obvious to require comment. On the other hand, cases often occur in which the finding of one issue is decisive of the case, and renders a consideration ,of the other wholly unnecessary or immaterial.” The opinion then proceeds to hold, with manifest correctness, that in that case it appeared from the record that it was at least uncertain whether the jury had tried the issue of payment, and sets aside the verdict for misdirection of the jury by the action of the court on the instructions on the subject of the statute of limitations. [5, 6] None of the cases above mentioned involves an issue upon a plea of recoupment as one of the several issues in question. Ás we know the defense of recoupment, as to unsealed instruments, to the extent that it does not exceed the plaintiff’s demand, can be made under the general issue, and a special plea in such case under the statute (Pollard’s Code 1904, sec. 3299; Code 1919, sec. 6145), is unnecessary (Cox v. Hagan, 125 Va. 656, 100 S. E. 666.) And when made under the statute, in accordance with the procedure in Virginia, as regulated by statute (Pollard’s Code, 1904; sec. 3304; Code, 1919, sec. 6150), where both the plaintiff’s and the defendant’s claims are to be passed upon by the same jury, but one verdict is expected to be rendered, that being either for the plaintiff or defendant, as the case may be, for the excess to which the one or the other may be entitled, over and above whatsoever the adverse party may be entitled to, if anything, on consideration of the conflicting claims. Hence a general verdict in such case for the plaintiff is necessarily a finding in his favor upon the issue on the special plea, as well as upon the general issue. The judgment under review will therefore be affirmed. Affirmed.