Meredith v. Kennard , 1 Neb. 312 ( 1871 )

Mason, Ch. J.

This action was instituted by Meredith, as assignee of McCready, to recover possession of three promissory notes of one thousand dollars each, made by John A. McMurphy, payable to the plaintiff's assignor or his order, and by him indorsed. The defendants answered denying the special property of Meredith in the notes, denying that the assignment included them, and charged that the same were made for the purpose of hindering and delaying creditors, and plead property in themselves. The cause was tried to a jury, who returned a verdict as follows: “We, the jury in the above entitled cause, find for the defendant. B. A. Hall, Foreman.” A motion was made by the plaintiff to set aside the' verdict and for a new trial for alleged errors of law in giving and refusing instructions to the jury, to which exceptions were taken, and because the verdict was not warranted by the evidence, and because the verdict did not respond to nor determine the issues of fact joined in the pleadings, and was insufficient in law. Other errors and irregularities were also complained of. This motion was denied by the court and judgment rendered upon the verdict. All the evidence given at the trial is set out in the record. The' notes in controversy were not taken on the writ of replevin and therefore not delivered to the plaintiff. This proceeding in error is brought to reverse the judgment of the court below. Let us first consider the question made upon the sufficiency of the verdict. Section one hundred and ninety-three of the Code, reads as follows: “ When the property claimed (in replevin) has not been taken or has been returned'to the defendant by the sheriff, for the want of the undertaking required by section one hundred and eighty-six, the action may proceed as one for damages only, and, the plaintiff shall be entitled to such damages as are right and proper; but if the property be returned for the'want of the undertaking required by section one hundred and eighty-six, the plaintiff shall pay all costs made by taking the same.” When the property claimed in the petition, affidavit and writ has not been taken, the action shall proceed as one for damages. If this action had been brought for the wrongful taking by the defendants, and converting to their own use the property mentioned in the writ and the answer filed, and trial had, and verdict rendered the same as in this case, it would not be pretended that the verdict was not responsive to the issues and entirely sufficient.

We are referred to Hawson v. Saffin, 7 Ohio, 587, which was replevin upon issue joined on pleas of non detinet, with notice of special matters and property in both defendants, and property in a third person. The verdict was for the defendants, as follows: “We, the jury, find for the defendants, and assess the damages at eleven hundred and forty-one dollars and twenty cents. Here wei’e two special issues each inconsistent with the other. The jury found the right of property in both defendants and in a stranger, and the repugnancy in the verdict was held fatal. A vei'Nj diet which finds two inconsistent facts is void and cannot be the foundation of a legal judgment. The law, we think, is clear that the verdict must respond to all the material issues between the parties, Dewitt v. Greenfield, 5 Ohio, 227; Powell v. Harper, Idem, 259; State v. Bank of Cincinnati, 7 Ohio, 131. Cases may occur when a general verdict alone will be a substantial response to the issues taken by special matters set up in the answer, .when all the facts set up in the answer are negatived by the general verdict. Is not this the precise case at'bar ? The defendants deny the property of Meredith in the notes and plead property in themselves. This general verdict responds to and finds all the issues made between the parties in fav.or of the defendants, and is'such a finding as the statute contemplates when the property has not been taken on the writ of replevin. We' think the verdict in form sufficient and responsive to the issues.

It is insisted by the plaintiff in error that there was no evidence upon which to predicate the instructions given. The court, at the request of defendant’s counsel, instructed the jury as follows :

1. “ If the jury find, from the evidence, that before the making of said assignment, there was a settlement made between Alexander McCready and Thomas P. Kennard, as the agent of the defendants, and that said Thomas P. Kennard had authority to make such settlement; and if the jury further find from the evidence, that as part of said settlement the notes in controversy in this suit were to be endorsed and delivered by McCready to said Kennard, with the agreement that, they should be applied upon an indebtedness existing in favor of the Kennards, then the ownership of the notes passed to the defendants, and became their lawful property.

2. The title and ownership of the -said notes being once vested in the defendants, a mei'e tender back of said notes, not accepted by the said McCready, did not pass the title to the said notes to said McCready, and no acceptance or declaration of willingness to receive said notes back, made after the execution of said assignment, would have any effect to pass the title to John ft. Meredith, assignee, without the assent of the defendants.

3. In this action it is incumbent upon the plaintiff to make out his title to the property claimed, before he is entitled to a judgment therefor; and before the plaintiff can recover in this action damages for said property (the same not having been taken by the sheriff), he is bound to show its value in proof; and in absence of proof of the value of the property, even if the jury find them entitled thereto, they can render a verdict for only nominal damages.”

To the giving of each of these instructions, the plaintiff excepted, and the jury then retired to consider of their verdict, and afterwards returned into court without agreeing, and asking further instructions upon questions of law as to settlement with Thomas P. Kennard, when the court further instructed the jury as follows :

“ If the jury believe from the evidence, that Thomas P. Kennard had authority to make an absolute settlement of this debt, and he made such settlement, and as a part thereof took these notes in payment, the defendants would be bound by such settlement; and in ascertaining whether a settlement was made, the jury may inquire why was the individual note of McCready given ? and may consider that fact as a circumstance to prove a settlement. If the jury shall find that the notes were placed in the hands of defendants as security for the debt from McCready to defendants, and that they hold them for that purpose, the defendants have a right to the notes in this action.”

The jury retired, and afterwards returned the verdict which is before set out. We fail to find any evidence in this record tending in the least degree to prove a settlement between McCready and the Kennards, or that Thomas P. Kennard ever effected any settlement, or settled the accounts between them, or was the agent for that purpose. There was then no evidence upon which to predicate the first instruction requested by the defendants. The second and third instructions were justified by the evidence, and we see no error in either of them. The same objection lies to the instructions given to the jury by the court, after the jury had returned and requested further instructions on the question of settlement, that lies to the first requested by the defendant. The charge of the court to the ‘ jury should always be founded on and applicable to the testimony; but if an erroneous charge be given to the jury on an abstract proposition or on a point entirely out of any case made by the evidence and the verdict can be supported by the proof made, the judgment will not be reversed. — Creed v. Commercial Bank of Cincinnati, 11 Ohio, 489 ; 1 Indiana, 406; 6 Blackford, 258 ; 7 Blackford, 272; 15 Indiana, 190; 8 Blackford, 240.

But when, as in this case, it plainly appears the court, in charging the jury, gave instructions not required nor called for by any evidence, and it appears that such unnecessary charge was calculated to, and we think did, mislead the jury in considering the facts of the case, the judgment ought to be reversed. The judgment is reversed and trial de novo awarded.

Reversed and remanded.