Stacy, Adams & Co. v. Cook

[53] The opinion of the court was delivered by Smith, J.: In answer to the petition, which stated a cause of action upon an account for services, the defendants below alleged, among other things, that George W. Cook was indebted to them in the sum of $5860.40 upon an account, a copy of which was attached to the answer, and was further indebted to them in the sum of $1000, evidenced by a note executed to William H. Stacy, which was indorsed by the latter to the firm of Stacy, Adams & Co., and prayed judgment against him for said amounts. In said account Cook is credited with “salary account for 1894 up to taking stock in August, 1894, $1770.” In his reply, the plaintiff below denied generally the allegations of the cross-petition and answer, except the admission that on August 31, 1894, defendants owed the plaintiff $1770 for salary. He further averred that Stacy, Adams & Co. agreed and promised that if he and his partner, constituting the firm of Cook & Son, would give defendants below a mortgage on their stock of goods and fixtures, Stacy, Adams & Co. wóuld pay in cash to said Cook all of the salary then due him, and would under no circumstances claim the right to apply said sum due for salary upon the amount owing by Cook & Son to the defendants below ; that, acting on said promise and in consideration of the same, a mortgage was given. In opening the case, counsel for plaintiff below, George W. Cook, briefly stated to the jury his claim against Stacy, Adams & Co. Counsel for the latter then made a long and detailed presentation to the jury of the facts which the defense would show, in which he referred to the indebtedness of Cook & Son [54] to Stacy, Adams & Co. as an offset against the claim for salary, and said : “Instead of being indebted to him (Cook), he is indebted to them (Stacy, Adams & Co.) in the sum of over $6000, and that at the time he says there was salary due him. There would be salary due him but for the fact that he owed this large sum; that part is not in dispute.” At the close of this statement the plaintiff below submitted the case to the jury on the pleadings and admissions of counsel and rested. • Defendants below then moved for judgment on the pleadings and the admissions of counsel, which motion was overruled. The court then decided that the burden of proof was upon the defendants below. There was no error in this ruling. The amount of salary due to Cook up to August 14, 1894, was clearly admitted in the state-, ment of counsel, and the inquiry thereafter was rightly confined to the question whether, by an agreement between the parties, upon sufficient consideration, Stacy, Adams & Co. had contracted to waive their right to use $1770 of the amount of' their claim against Cook as an offset to the amount for which Cook was indebted to them. The testimony of George W. Cook, and Plerbert Y. Cook tended to establish an express agreement upon the part of Stacy, Adams & Co. that the amount of this salary would be paid at all events, in consideration of their executing a chattel mortgage on the goods in their store to the defendants. It is contended that a promise to pay this salary is without consideration, for that it is an agreement to pay to Cook what was already due him, and being already bound to make payment of the amount, any additional agreement to do the same thing lacked con [55] sideration., within the rule of Schuler v. Myton, 48 Kan. 282, 29 Pac. 168. The facts, however, do not bring this case within the rule of that decision. Cook & Son were bound in law and morals to pay their indebtedness to plaintiffs in error, but were not bound to secure its payment by chattel mortgage or otherwise, and the giving of such security was sufficient consideration for an agreement upon the part of Stacy, Adams & Co. to waive their right of offset and to pay Cook the amount of salary then due. (Jaffray et al. v. Davis et al., 124 N. Y. 164, 26 N. E. 351, 11 L. R. A. 710 and note; Gutchess v. Daniels et al., 49 N. Y. 605; Tagg v. Bowman, 108 Pa. St. 273; Gross v. Weary, 90 Ill. 256.) For the same reason special interrogatories 1 and 2, submitted by defendants below, were properly refused by the court. And the first and second instructions upon the subject of consideration requested by them were also rightly refused. There is but one serious question in the case. It relates to the refusal of the court to permit counsel for plaintiffs in error to read to the jury the particular questions of fact, and to argue how, in his opinion, they should be answered. The court held that it was proper to argue generally all the evidence bearing upon the facts covered by the special interrogatories, but would not permit counsel specifically to- call the attention of the jury to each question, and suggest to or advise them what answer they should make thereto from the evidence heard. The particular questions were settled before the argument, and were known to both parties. Under our practice such answers control the general verdict. (Gen. Stat. 1897, ch. 95, § 297; Gen. Stat. 1899, § 4550.) The jury are required to answer each of the questions propounded truthfully, [56] in accordance with the preponderance of evidence bearing upon the interrogatory submitted, and we think counsel ought not to be restricted to a general discussion of the evidence when particular questions of fact applicable to the case have been settled and allowed for submission to the jury. It is often of great assistance to the jury for counsel to array the facts and point out their force as applied to a particular question which they are called upon to answer. The supreme court of Iowa has passed upon this question, saying: “That it is competent for an attorney to read special interrogatories to the jury, and discuss the evidence applicable thereto, must be conceded, and it seems to us that the court,ought not, without good reasons, to interfere with such right. It is difficult to see how an attorney can properly discuss the evidence bearing upon any question the jury is required to answer without indicating quite plainly how, in his judgment, the question should be answered.” (Timins v. The Chicago, Rock Island & Pacific R’y. Co., 72 Iowa, 94-99, 33 N. W. 381.) As bearing upon the general right of argument, see Douglass, Sheriff, v. Hill, 29 Kan. 527; Railroad Co. v. Cattle Co. 59 Idaho, 111, 52 Pac. 71. The court below erred in restricting the scope of argument in the-manner stated. There is no merit in the contention that plaintiff below was seeking to contradict the terms of the chattel mortgage by his proof of & contract on the part of Stacy, Adams & Co. to pay the amount of his salary. There was no attempt to invalidate the mortgage, and the agreement went merely in explanation of the consideration. (McKinster v. Babcock, 26 N. Y. 378; Bainbridge v. Richmond, 17 Hun, 391.) The judgment of the court below will be reversed and a new trial granted.