Guerold v. Holtz

McGrath, C. J. Plaintiff, as successor of Guerold & Fairchild, brought replevin for a piano sold by said firm upon a contract reserving title in the vendors until the full price with interest was paid. The principal sum was paid, but a controversy arose as to a balance of interest amounting to $58. It was insisted by defendant that the piano was delivered under an oral contract, which did not contemplate interest, and that the written contract was afterwards presented, and executed by defendant in ignorance of the fact [121] that it contained a promise to pay interest. This seems to have been the sole question litigated, and upon that issue the jury found for plaintiff. No assignment is based upon the refusal of the court to give any charge requested by defendant’s counsel. The court instructed the jury that— "If the jury find that the contract under which the piano was bought by the defendant was the contract produced by the plaintiff, and provided for the payment of interest; that the defendant broke the conditions of this contract; that possession of piano was thereupon demanded by the plaintiff, and refused by the defendant, — then the plaintiff is entitled to the possession of the piano in suit.” It is alleged that this was erroneous, for the reason that the contract was one between Guerold & Fairchild and defendant, and no assignment was proved. Plaintiff’s testimony was that he had purchased his partner’s interest in the business, and succeeded to all the firm assets. No question was raised upon this subject, either at the trial or upon the motion for a new trial, and the question cannot now be considered. The court instructed the jury that if they found that, before the suit was commenced, plaintiff demanded a return of the piano, that such demand was refused, and that at that time defendant was in default, plaintiff was entitled to recover. It is now insisted that no demand was made. 'There was testimony that plaintiff demanded the piano, and that defendant refused to surrender - possession; and •such testimony was not disputed, nor was any question raised before either court or jury respecting the sufficiency -of the demand, or the sufficiency of the proofs to support the instruction. It is urged as error that the court instructed the jury "that— " If the jury find that the plaintiff is entitled to recover possession of the piano, they are also to determine from [122] all the evidence the value of the piano, — that I have already stated, — fix the damages for the unlawful detention.” It is alleged that this was error, for the reason that it. fixes the value of the piano as the measure of damages. The piano had not been recovered under the writ. Plaintiff was therefore entitled, in addition to a judgment for damages and costs and for the delivery of the property, to have its value assessed by the jury. How. Stat. § 8343. The-instruction was correct, except that it omitted the word “and” between the words “stated” and “fixed.” This-was a repetition of an instruction which had been given, wherein the court had separated the question of value and the question of damages for detention. In view of the fact that the jury assessed no sum as damages, the defendant was not prejudiced. The entry, however, of the verdict and judgment, is not warranted by the finding of the jury. The jury found generally for plaintiff, and fixed the sum of $58 as the amount due plaintiff under the contract, and further found that he had a lien upon the piano for that amount. They assessed no damages for the detention of the property. Plaintiff is not here complaining, but seeks only to obtain the balance which the jury found to be due. Defendant is not prejudiced by the fact that the verdict is, in form, under How. Stat. § 8342. The verdict disposes of all of the questions growing out of the transaction, and in a manner most favorable to defendant. It does not warrant the entry that the jury assessed the damages for the de.tention at the sum of $58, but the judgment entry may be corrected so as to give plaintiff a judgment for that sum, with costs, providing that the same be paid within, a given time, — otherwise, that the property be delivered up, and sold to satisfy such judgment on delivery as aforesaid, and that plaintiff have execution under How. Stat. § 8344. [123] We do not concur in the view that the jury determined no issue except that as to the amount . due. They had been instructed that, if they found certain facts, the plaintiff was entitled to recover. They brought in a verdict for the plaintiff. Defendant’s sole contention was that nothing remained under the contract of purchase; hence, that he was entitled to the possession of the property. The jury found a balance due plaintiff of $58. If this amount was due, and defendant had refused to pay it (and the fact of refusal was not disputed), plaintiff was clearly, under the contract, entitled to possession upon demand therefor, and as a matter of law the detention was unlawful. Nor do we think that the verdict as entered must be conclusively presumed to be the verdict as rendered. The bill of exceptions, when filed, becomes a part of the record. It contains the action of the court prior to the time when the verdict is put in force by the clerk. That entry made by the clerk does not necessarily compel us to conclude that the bill of exceptions is in any respect untrue. Fromme v. Jones, 13 Iowa, 474; Moody v. McDonald, 4 Cal. 297. A motion was made for a new trial, but the only ground urged, not already discussed, was that of newly-discovered evidence. The contract in question expressly provided that defendant should pay interest upon the purchase price until paid. A copy of the paper was left with defendant. The real question was whether any deceit, fraud, or misrepresentation had been used to induce defendant to execute the paper. The newly-discovered evidence was merely cumulative, and related to a conversation had some days before the contract was executed, as to the terms of the sale. We do not think that the circuit judge abused the discretion reposed in him, in refusing to grant a new trial. The judgment entry in the cause will be vacated, and [124] judgment entered in accordance with the suggestions herein made, and the record will be remanded for that purpose. No costs in this Court will be granted to either party. The other Justices concurred.