State Life Insurance v. Postal

Hadley, P. J. Cross-complaint by appellee against appellant for unpaid commissions claimed to be due appellee as soliciting agent of appellant based on a written contract with alleged oral modifications. The cause went to trial on a second amended cross-complaint by appellee in three paragraphs, a general denial and four affirmative paragraphs of answer by appellant, a reply of general denial and four affirmative paragraphs of reply by appellee. Appellant demurred to each paragraph of the second amended cross-complaint and to each of appellee’s four affirmative paragraphs of reply. All demurrers were overruled by the court, and the cause was tried on the issues formed by said amended cross-complaint, the answers thereto and the replies. The jury first returned a verdict against appellee upon his cross-complaint and against appellant on the answers thereto. Upon being required to return to the jury room for further deliberation, the jury returned a verdict for appellee in the sum of $3,550. Appellant moved for judgment on the verdict first rendered, and for a new trial, which motions were overruled. Appellant assigns as error: (1) The overruling of its demurrer to the second paragraph of appellee’s reply; (2) overruling its motion for a new trial; (3) the action of the court relative to the poll of the jury, in requiring further deliberation by them, in accepting the — 146 — second verdict consequent on such further deliberation, and overruling appellant’s motion for judgment on the original verdict. Appellant’s second and third paragraphs of answer pleaded an account stated as a set-off to the claim of appellee in the cross-complaint. It is conceded that appellee’s second paragraph of reply to appellant’s second and third paragraphs of answer is a plea of the statute of frauds thereto, in that the alleged promise to pay the stated account was a promise, not in writing, to pay the debts of other persons, that arose out of transactions with said other parties, wherein appellee acted solely as agent for appellant. §7462 Burns 1908, cl. 2, §4904 R. S. 1881. 1. It is urged that the court erred in overruling appellant’s demurrer to this paragraph of appellee’s reply, and the only reason given for this contention is that no defense can be pleaded to a suit on an account stated except that of fraud, mistake and subsequent payment. We have examined a very great many authorities upon this question, and find many different rules of law laid down with reference to accounts stated. A review of these authorities would not be profitable or enlightening if made here, as the rule seems to be settled in this State, in the case of Linville v. State, ex rel. (1892), 130 Ind. 210, where the court say: “The law favors the settlement of business transactions by the parties, and when they make such settlements they will be held bound thereby in the absence of fraud or mistake or other illegality. [Further, quoting from 1 Am. and Eng. Ency. Law, p. 109, the court say:] ‘A voluntary settlement of accounts between parties affords a presumption that all items properly chargeable at the time were included. This presumption is not conclusive, but clear and convincing proof that such items were unintentionally omitted is necessary to sustain a subsequent claim to recover them. * * * Bull v. Harris [1863], 31 Ill. 487; Lee’s Admrs. v. Reed [1836], 4 Dana (Ky.) *109; — 147 — Kennedy v. Williamson [1858J, 5 Jones (N. C.) 284; Stebbins v. Niles [1852], 25 Miss. 267; Leighton v. Grant [1874], 20 Minn. 345; Rowell y. Marcy [1874], 47 Vt. 627; Lockwood v. Thorne [1858], 18 N. Y. 285; McNeel v. Baker [1873], 6 W. Va. 153.’ ” 2. As the defense interposed by -the reply in this ease presented the question of the legality of the promise, it came within the rule laid down in the authorities before cited, and the demurrer thereto was properly overruled. It is next insisted that the court erred in giving, at the request of appellee, instruction two and also in giving, of its own motion, instruction three. 3. Instruction two was to the effect that if the jury found from the evidence that appellee entered into the employ of appellant to solicit life insurance, and was to receive certain commissions on the first year’s premiums on all insurance written by him, and that said commissions were not to be paid except as such premiums were paid in cash, and that appellee did procure such insurance, and that the first year’s premiums thereon had been so paid to appellant, and appellee’s commissions thereon had not been paid to him, under such circumstances appellee was entitled to recover such commissions so remaining unpaid. The third instruction was to the effect that if the jury found from the evidence that appellee, with the consent of appellant, accepted notes for first year’s premiums on policies to be issued by appellant, and turned such notes over to appellant for collection, and unless the jury further found that appellant accepted such notes so turned over to it in lieu of cash settlement of such premium, then the appellee was entitled to recover the commission agreed upon, only upon such amounts as liad been collected by or paid to appellant on such notes. Appellant contends that these two instructions exhibit and proceed upon two inconsistent theories. We do not so un — 148 — derstand them. One applies to eases where the first year’s premium had been paid in cash, the other to eases where notes had been given. It is not claimed that either of the instructions are inapplicable to the evidence or outside the issues. Neither the cross-complaint nor substance thereof is set out in the briefs, and we assume the issues and evidence warranted the instructions. It would certainly not be inconsistent for appellee to seek to recover commissions due on premiums paid in cash directly to him, and commissions due on premiums collected on notes for premiums, which appellee had turned over to appellant for collection. The instructions are not subject to the objections raised. It also appears that the jury, after retiring, returned into open court a verdict as follows: “We, the jury, find for the plaintiff, State Life Insurance Company, and against said defendant, John S. Postal, on the issues joined on said cross-complaint of said John S. Postal, and we further find for said defendant, John S. Postal, and against said State Life Insurance Company on the issues joined on the answers of said State Life Insurance Company.” This verdict was read to the jury, and the usual general questions— ‘ ‘ Is this your verdict ? ’ ’ and ‘ ‘ So say you all ? ’ ’ — were propounded to the foreman and jury, to which they all gave assent. Then, upon request of appellee, the jury were polled, and the questions, “Is this your verdict?” and “Are you still satisfied with your verdict?” were propounded by the clerk to each juror as his name was called. It does not appear from the record that either of said questions was suggested or requested by appellee, his request being for the polling of the jury only. And we presume they were asked by direction of the court on its own motion. To the first question each juror answered in the affirmative; but to the second, eleven answered in the affirmative and one in the negative. Appellee then moved that the court require the jury to return to the jury room for further deliberation, which was accordingly done, and it afterwards re — 149 — turned into court its verdict, finding' for appellee, which verdict was received, recorded and judgment rendered thereon. Appellant made proper and timely objections to the propounding of the second question to the jury, and all succeeding steps, so as properly to save and present all questions arising upon the court’s rulings and notions in that behalf. 4. The authorities agree that until the verdict is actually agreed upon, returned into and received by the court, recorded, and the jury discharged from its consideration, the jury has control over it, and may withdraw, amend or change it as it may decide, except in cases of sealed verdicts, where the jurymen have dispersed. In such cases, however, it is held by some authorities that the jury may, upon reassembling, change or annul its verdict, though it may not render a new verdict. Wightman v. Chicago, etc., R. Co. (1888), 73 Wis. 169, 40 N. W. 689, 9 Am. St. 778, 2 L. R. A. 185; Labar v. Koplin (1851), 4 Comst. (N. Y.) *547; Root v. Sherwood (1810), 6 Johns. *68, 5 Am. Dec. 191; Proffatt, Jury Trials, §456; Nickelson v. Smith (1887), 15 Ore. 200, 14 Pac. 40. This has been the rule for centuries. Saunders v. Freeman (1562), 1 Plow. 209; King v. Melling (1698), 5 Mod. 349. 5. But it is contended that the court erred in permitting the question, “Are you still satisfied with the verdict?” to be asked the jury, and the case of Bowen v. Bowen (1881), 74 Ind. 470, is cited in support of this contention, in which case, however, the Supreme Court held it was not error for the court to refuse, to permit such a question to be put, the court saying that the question, ‘ Is this your verdict?” was all the party had the right to ask. But Ave do not consider that this is an authority for holding that if the court, in exercise of its discretion in such matters, permits such a question to be put, that such action is reversible error, unless it is clearly shown that the rights of a party were prejudiced thereby. Each party to the litigation was entitled to a verdict that satisfied the conscience — 150 — of each member of the panel at the time it was presented in open court. The question objected to did not call for an explanation of the verdict or the reasons for returning it. When it was disclosed in any manner, before the verdict was fully received and recorded, that the verdict returned did not meet the approval of the whole panel, it became a nullity; and, if the jury was still in the box, we can see no reasonable objection to its being' sent back for further deliberation, and its subsequent verdict received and acted upon as its final determination. The court did not indicate in any manner that the verdict first returned did not meet its approval, or that the jury was not at full liberty to return the same verdict after further deliberation. The verdict finally returned appears to have been the result of such further deliberation, and to satisfy the conscience of each member of the panel. The court, therefore, did not err in receiving it and entering judgment upon it. Judgment affirmed.