Doran v. Ryan

OetoN, J. This is an action of trover for the conversion of a span of horses and a cutter. No exceptions are taken to the verdict of the jury on the facts. There were thirty-two special finding's of the jury on the various facts of the case, and it does not appear that more than five were necessary : First, that the plaintiff was the owner of the property ; second, that the defendant converted the same to his own use, as charged in the complaint; third, the value of the property; fourth, that the mortgage by which the defendant claimed to own the horses was void for want of a consideration; and, fifth, that the defendant did not purchase the mortgage in good faith. There are only three assignments of error: First, that the court permitted the plaintiff to give testimony, over objection, that the mortgage was void for lack of consideration; second, that the court erred in excluding the copy of the bill of sale given by Patrick Doran to the defendant for the cutter; third, improper remarks of the plaintiff’s counsel to the jury. 1. The argument of the learned counsel for the appellant is that the court should not have permitted evidence that the mortgage was given without consideration, when the defendant had in good faith purchased it. The argument fails, for the reason that the jury found that the defendant did not-purchase it in good faith. I can conceive of no other reason why such fact might not be proved. 2. The copy of the bill of sale was properly rejected, because the certificate of the town clerk was insufficient, in that it did not state that the copy “ had been compared by him [the clerk] with the original,” as required by sec. 4149, R. S. See, also, Stevens v. Clark Co. 43 Wis. 36. 3. The remarks of the plaintiff’s counsel to the jury, excepted to, were: First, ilDennis liywn got hold of everything that Lawrence Doran owned; ” second, “ This is the most vicious practice we have in our day of asking for a [66] special verdict; ” third, “ Who gave you thirty-two questions to answer here? Did I do it?” fourth, “The special verdict in this case is the only confusing feature in The case.” The plaintiff’s counsel explained, as to the first, that Dennis Byan stated in his testimony “ that he put into the bill of sale everything he could think of.” By looking into the bill of exceptions, it appears that Dennis Byan did put into the bill all the property that he could then think of, on his examination as a witness, and the remark appears to have been justified by the evidence. Second. The remark that a special verdict was a vicious practice was corrected and repelled by the court at the time, and I am not certain that it ought to have been. So many unnecessary questions do tend to confuse the jury. The special verdict should be confined to the main issuable facts. It is not apparent, however, how such a remark could have improperly influenced the jury one way or another. It might stimulate them to try to understand the questions correctly. The two other remarks were as to who gave the jury the thirty-two questions to answer, and that this was the only confusing-feature in the case. Such remarks would seem to be the merely idle and harmless sparring between counsel, and not calculated to influence the jury to find a verdict one way or the other in the case, or prejudice them against the counsel on either side. It was not error in the court directing the jury as to the form of their verdict after they had found all the issuable facts in favor of the plaintiff. This is a common and necessary practice, and no more objectionable than for the court in the first place to. give the jury the form of the verdict on both sides, which is the practice of some courts. Victor S. M. Co. v. Heller, 44 Wis. 265. By the Court.— The judgment of the circuit court is affirmed.