Hazard Powder Co. v. Viergutz

— 481 — The opinion of the court was delivered by Kinsman, C. J.: The plaintiff in error, who was plaintiff below, obtained a judgment against the defendants in error for $458.53. • Plaintiff claimed in the petition divers' sums, in nine different causes of action, amounting in the' aggregate to $8,707.69, and interest thereon. Defendants for answer made a general denial, and for a second defense pleaded payment on the several causes of action embraced in causes four, five, six, seven, eight and nine, of the petition, to the amount of $1081.87, and admitted a balance due and unpaid on those counts in the petition of $449.19; and for a third defense, to the first, second and third causes of action, claimed that the articles therein alleged to have been sold to defendants, amounting in the aggregate to $7,176.63 were purchased under a speciaL agreement to the effect that the defendants were to ship the goods, mainly powder, to Montana Territory, and whenever said defendants should dispose of said goods and they should realize the money arising from the proceeds of such sale, the said sum was to become due and payable, meantime to bear interest after six months; averring that the goods could not be sold for money, and that defendants had sold them for a voucher in amount $16,791, of which fact they notified the plaintiff, and had delivered the voucher to the plaintiff to collect- or dispose of, and when the proceeds were realized to pay for the goods and hold the remainder subject to the order of the defendants, and the plaintiff still holds the voucher. The plaintiff- replied by a general traverse, and in a second, third, and fourth reply set up substantially that defendants had had the benefit of the payments set up in — 482 — their answer in another action, and that plaintiff had by mistake once given certain credits on certain of the causes of action set up in the petition. These issues were tried, and a general verdict rendered for the plaintiff’, as above stated. At the request of the plaintiff the jury also returned answers to certain questions submitted to them. 1. Dividing causes “orSrmit; pioot o. The testimony is all in the case, and is very voluminous, and is made somewhat complicated from the fact that the plaintiff in a previous action, had sued on a Parf °* his account, and V íergutz, the defendant in that action, had proved payments to the plaintiff to an amount larger than the claim of the plaintiff in that action. The judgment in that ease was for. the defendant for costs, but not for the overplus of the payments beyond the plaintiff’s demand. In the present action it became necessary to introduce evidence of all the payments made; and the difficulty arose out of the fact, that what had been claimed by the defendants in the former action could not be distinguished from those made in this. The court below very properly admitted it all, for it would have been a gross wrong to have permitted the plaintiff, by making two actions on one account, to have so complicated the testimony as to have precluded the defendants from obtaining the benefit of all the payments they had really made. The court let in all this testimony, as well as the judgment and proceedings in the former case; but as the testimony in the former case was not preserved, it was impossible to distinguish with precision what had been testified to in that case, or for what reason some of the testimony had been admitted. It was all admitted; and for this reason we cannot say that the receipts of payments made on the — 483 — 26th March, and the 17th- April, 1866, were improper testimony. The first of these payments was made before any of the claims sued on in this action arose, and the second was made for fuse purchased before the account sued on was made, if we are to determine that fact from the date of the account, or the testimony; but it is impossible for us, as it was for the court below, to determine what had been in evidence on the former trial. The defendants’ theory, on this part of the defense, seems to have been to admit the justice of the plaintiff’s claim in the former suit, and claim as a credit in this one all they could prove, and then deduct the plaintiff’s demand in the former action from that, and for the remainder they would be entitled to a credit in this action. And this was the only course left for the court to pursue; and in this view we cannot say that the two receipts for $64.49 and $91 were improperly submitted to the jury. They were in evidence in the first suit, (see the testimony of Yiergutz;) and the court was to presume were properly in that suit; and the condition of the case requiring that all the credits to which defendants were entitled in both suits should go in evidence, these papers were properly in. It will be conceded that it is an awkward and unartistic method of trying a ease; but this condition of things was brought about by the plaintiff splitting up his account so as to make two causes of action. If defendants had made more payments than the amount of the claim in the first action, they were entitled to have them go on the claim set up in the last. These remarks will also apply to the other testimony admitted over plaintiff’s objections. — 484 — 2. oninoispefnuo en"or?eat’, II. The next point that is made Í3 in the court’s refusal to give a-certain .instruction to the. effect “that if the. action of the plaintiff against Otto H. Yiergutz alone, in this court, of which evidence is before you, was upon an indebtedness of the firm of O. H. Yiergutz & Co., the defendants in this case, and the defendant in- that case gave in evidence payments or other credits'to defeat the claim of the plaintiff in that case, the same payments or- credits cannot again be used to defeat the .claim of the plaintiff in this case.” This instruction was asked after the court had charged the jury, and was refused — and properly, for although it was the law of the case, it had already been fully given, as is sufficiently evident from the following extract from the charge of the court: “ The defendants cannot be twice “ allowed the benefit of the same payments or credits. <£ * * * The defendants in this, action are not entitled “ to the benefit of any payments or credits, which they “ received the benefit of. in the former action, or which “ Mr. Yiergutz the defendant in that action received the “ benefit of. They cannot be twice allowed for the same “payment or credit. The defendants should receive the “benefit of all payments or credits which the testimony “ shows have been made upon .the claims sued upon in “ this action unless it shows that the defendant received “ the benefit of the payments thus shown or part of them “ in the other action to which I have alluded.” Having thus explicitly given the law, the court was not called upon to repeat it. 3. vei*ict — pSSiST” III. A motion for a new trial was made and overruled; and on that motion, various questions-were argued, which will be now considered so far as they are deemed important in this decision. It has — 485 — already been stated that the jury found a general verdict ■for plaintiff which/is as follows: . “ We- the'jury find for the plaintiff, and'assess his damages at '$458.53.” The jury also found certain spécial facts responsive, to “ interrogatories ” submitted to them by the court a.t the instance of the plaintiff, as..follows Interrogatory First: What amount, if ány, is due from the defendants to the plaintiff oh the claims sued upon in this ease, exclusive of payments and all" other credit's ?' [Answer — $458A3.] 1 Second: What amount of the payments and credits ■given in evidence by the defendants;-"was gNen - in" evidence and allowed to.the., defendants in .the .cage-of-the Hazard Powder Company against, Otto H.. Viergutz, heretofore tried in this court? [Áhswer — $3,475.52.] Third; What was the amount of the excess, if any, of :the payments'and credits claimed and given in-,, evidence in that case, over and above the amount of the plaintiff ;’s claim in that case ? [Answer — $1,225.85.] Fourth: What payments have.the.defendants made, on the claims of the plaintiff, sued upon'in this case?; Answer’ — $1,225.85.] ' ’ •" ‘ ' Fifth:-What was the aixiodht of the'plaintiff’s’'hlaim in the case of. the Hazard Powder' Company against Viergutz, heretofore tried in this court ? . [Answer — - §3,475.52.] ' ' Sixth: Was the plaintiff’s claim in that case on an account of demand for goods sold and delivered by the plaintiff to O. H. Viergutz, David vPrager and Julius Haug, partners, as “ O.H. Viergutz & Co.,” the defendants in this.action? [Ahgwer — Yes.] . / ,' Seventh: Was the Montana voucher delivered fo the plaintiff as a paymentj" of as security only ? ' [Answer— ■As security;] ' • ’ '■■ " ' • ••'■■•■' '■■ Fighth- Was the transaction-'’between* the pláintiff-'and - defendants- in relation to the Montana powder a sale .or .not? [Answer — It was ,a .sale,] .. ... . ... — 486 — ■’Ninth: If it was a sale, what were the terms of the sale, and when was the amount thereof due ? [Answer— The amount is due when money is realized for goods sold.] Tenth: If it was not a sale, what were the terms of the transaction ? [Answer — It was a sale.]- Eleventh: Is the credit of October 31, 1867,'of $700 on the account, sued on in the case of the Hazard' Powder Company against "Viergutz, the same credit of that amount claimed in this case ? [Answer — Yes.] .- It is. claimed by the plaintiff in. error that the special findings of fact are not only inconsistent with the general verdict, but are inconsistent with each other. It will be observed that the special findings are not, strictly speaking, a special verdict, though in -many respects they may be assimilated to a special verdict; but they differ in this — that they do not purport to be all the points which the jury agreed upon, or found necessary to consider,, in deciding the questions submitted to them. They are .answers responsive to certain questions. Any fact necessary to be decided by them in reaching a verdict, and not within the scope of these inquiries, would not appear in the answers; so that we have not to determine whether taken as a whole they are sufficient to uphold the judgment ; but if any of them are inconsistent with the general verdict, to that extent it ought to take the place of the general verdict; and of course the general verdict ought not to stand, if the inconsistency is of such a character that it is apparent that both cannot be. correct, and probably subjecrt.to the further consideration of whether it-may be seen from the record that substantial injustice may have resulted from the conflict. It is not every error that vitiates a verdict. They are to be favorably construed; and if sufficiently certain upon matters of sub — 487 — stance, though informal- the court will mould them into form. (18 Wis., 420; 10 Mass., 71.)- There -can he no question hut that the verdict must dispose of all the-issues; if it does that'with sufficient certainty to be understood with reference to the proceedings, that is all that should be- required. Now in the pleadings in this -case, while there is ' a general denial, there is enough to -show that defendants admitted that the claims in causes of action numbered 4th,- 5th, 6th, 7th, 8th and '9th, amounting to $1,531.06; were valid claims, and that paymefits thereon had been made to the amount of $1,081.87. This would leave due on those claims. $449.19; The other part of the plaintiff’s- claim it was urged, was not yet due -by the terms of the purchase; so that there were in fact two main questions — one, as to the payments made on one part of'the claim, andthe other, as to whether that portion of the claim was due. The court instructed the jury that they must find for the plaintiff on the pleadings at least $449.19; and under proper -instructions, left the other questions to them. The jury actually found a sum a little larger than was required by the pleadings, probably as interest from the time the action- was brought, or for some other cause. It is apparent from this verdict that they found the issue on causes of action numbered 1st,'2d, and-3d, for the defendant; and thus by the general verdict; under proper instructions, they passed upon all the -issues submitted to them, and found for the plaintiff as stated; and this is all that- is essential in' a verdict. It is erroneous'to'infer from such a verdict on such pleadings'that they found all the issues'for the plaintiff; "Neither reason nor-the authorities sustain any such doctrine. Nor do we find on careful scrutiny any conflict with this general verdict — 488 — in the special findings. They are in harmony with it, ■and with each other. The apparent conflict between, the first and fourth answers vanishes, when we look at the issues and the evidence. The jury had, under the direction of. the court, already found under the pleadings the sum mentioned in the answer to. the first question, while the evidence would fairly enough justify the jury in saying that the payments were larger than the verdict would indicate.- The verdict was necessary on the pleadings. The answer was predicated on the testimony. . ■ 4. special AndpaSh'waivei: The ninth finding of fact is only by itself.responsive to a portion of the question. It does not state what were terms of the sale, and. this was embraced in the question submitted. To this objection two answers may be given; first, the questions were submitted at the request. of the plaintiff. If they were not full and sufficient answers, he should have asked that the jury b,e directed to make more perfect answers, and the defect would have been cured without the cost of another trial. Blachley v. Sheldon, 7 Johns., 32. Second, there is no difficulty in understanding the jury’s answer when the pleadings and the instructions of the^court are examined in connection with the .verdict and the other special findings. Nor can we say against the verdict of th.e jury that the $700 mentioned in answer eleven has .been twice allowed as a credit to the defendants. This .matter was fairly submitted to the jury; and whatever uncertainty we might feel on this question, as well as on the more important one- as to when the Montana powder claim is payable, still they were fairly submitted to the jury on evidence tending to sustain the verdict, .and.it is ,not the province of a reviewing court to disturb such a ■verdict because the evidence is conflicting, — 489 — Having found no error in the record it becomes unnecessary to consider the motion for a venire faeias de novo. We may state however, that it seems a stranger-to'our code, and is not likely to meet with much favor from the profession. The judgment must he affirmed. All the Justices, concurring.