Stanard v. Sampson Et Ux. , 23 Okla. 13 ( 1909 )

(1) The court having submitted 47 special issues or specific questions of fact to the jury (6 requested by the plaintiff and 41 by the defendants) with instructions, in addition to their general verdict, to make findings thereon, the jury, reporting that they were unable to agree on a general verdict, were further instructed, without objection by either side, to return their answers to the special issues or specific questions of fact submitted; the plaintiff and defendants both filing motions for judgment on such findings for their respective sides; the court rendering judgment thereon in favor of the defendants; the same not having been assigned as error by a motion for a new trial — on review in this court will the general verdict be treated as having been waived?

(2) The jury having answered all of the specific questions submitted on request of the plaintiff and defendants, except 6 by the latter, all of which related to the issue of duress, except 1, possibly relating to both issues raised by the pleadings as to duress and illegality; all of the other questions submitted by the defendants relating to the issue of illegal consideration — if the special findings of the jury as returned constituted a complete defense to the note, can the failure to answer the other 6 questions of the defendants avail the plaintiff on review here?

(3) The jury not having returned a general verdict, but answers to specific questions, and the plaintiff having presented and filed a motion for judgment on such answers, which was denied, in the absence of the fact of the jury not returning a general verdict being timely objected to, with proper exceptions, and being assigned as error in a motion for a new trial, can same be reviewed on a petition in error?

(4) The answers to the special questions returned into open court, each question, and the answer thereto, seriatim being read by the clerk to the jury, and inquiry made whether or not such was their answer thereto, and no disagreement being expressed, but on the contrary every juror affirmatively answering that the same was his and their answer; neither party complaining of the form of the answers or questions, or that same had not been signed by the foreman, nor requesting that the same be signed; such answers being then and there received and ordered recorded, and the jury discharged, without objection or exception; and the same not having been assigned as error in a motion for a new trial — will the signing of the same by the foreman be treated on review in this court as having been waived?

(5) The husband having been arrested and incarcerated in jail on the charge of having committed the crime of disposing of mortgaged property, and his wife, who had committed no crime, having been also apprehended and incarcerated in jail for the purpose of coercing her into executing a note and mortgage on their homestead, to secure the indebtedness on account of which he had been arrested; when they have executed a note and mortgage on said homestead covering and securing said indebtedness, and the expenses accruing as a result of attempting to collect the same, and an additional $100 paid to the wife as a partial consideration for her joining in such mortgage, together with the additional consideration that she and her husband should be released from jail, and the prosecution against her said husband discontinued — are said note and mortgage void?

(6) Such note and mortgage having been executed and delivered to the plaintiff, and the said husband, Samuel Sampson, and his wife, Ellen Sampson, released from their incarceration; the consideration being to cover an indebtedness to W. G. Dixon in the sum of $208.77, the bank in the sum of $70.50, and $110 to be paid to L. P. Dixon as the agent of the said W. G. Dixon and said bank, and $100 paid to Ellen Sampson, the wife of her codefendant, Samuel Sampson, when she signed same, making the sum total of $489.27; the additional consideration being the release of the said Samuel Sampson and his wife, Ellen Sampson from their detention in jail and the discontinuance of the criminal prosecution against the said Samuel Sampson — could such parties, after their release from jail, without any additional consideration, ratify such illegal contract so as to make it become valid and binding upon them, or either of them?

1. Section 4473, Wilson's Rev. Ann. St. 1903, provides that:

"In all cases the jury shall render a general verdict, and the court shall in any case at the request of the parties thereto, or either of them, in addition to the general verdict direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same."

The plaintiff was entitled to have a general verdict returned; but, when he sat by, and permitted the general verdict to be dispensed with, and the answers to be returned into open court to the specific questions submitted, and to be recorded, without any objection, and afterwards filed a motion for judgment in his favor thereon, he cannot be permitted by such conduct to induce the court to commit an irregularity, and then speculate upon its result by seeking a judgment thereon in his favor, and be heard here on petition in error to complain, especially when there was no motion for a new trial filed and presented in the lower court seeking the correction of such alleged error. Young v. Stickney, 46 Or. 104, 79 P. 346;Seybold v. Terre Haute Indianapolis R. R. Co.,18 Ind. App. 378, 46 N.E. 1054; Taft v. Baker, 2 Kan. App. 601, 42 P. 502;Washington Nat. Bank v. Woodrum, 62 Kan. 867, 62 P. 672.

2. In the case of Ritchie v. K., N. D. Ry. Co., 55 Kan. 48, 39 P. 721, the court said:

"All it is necessary to determine in this connection is whether the court may review the conclusions of law and judgment, based on the conclusions of fact, found by the trial court. The conclusions of fact stand as the result and final determination of the issues of fact in the case; and, where no new trial is asked by either party, where no motion is made to set aside such findings of fact, or any of them, they stand as the facts in the case. They supersede the averments of the pleadings, at least so far as they are consistent with the issues properly triable. They eliminate whatever false averments and claims have been made by either party, and present to the trial court the basis of fact on which arise the issues of law. They stand as a statement of facts similar, if not in all respects identical, with the statements of a petition challenged by demurrer, or an agreed statement of facts, or special verdict of a jury, as to the legal effects and consequences of which issues of law arise, are argued and determined by the court."

In the case of Board of County Commissioners v. Porter et al.19 Okla. 173, 92 P. 152, the court held that where a case is submitted to the court solely upon the pleadings and an agreed statement of facts, a motion for a new trial is not required; the decision involving only a question of law. When all questions of fact have been eliminated, the court determines the issues of law thereon, and no necessity exists under the statute for a motion for a new trial to be filed in the trial court to have reviewed the judgment rendered on the facts found. Noble v. Harton, 6 Kan. App. 825, 49 P. 794; Sheets v.Henderson. (Kan.) 93 P. 577; Osborne v. Young, 28 Kan. 769;Horn v. Newton City Bank, 32 Kan. 518, 4 P. 1022; Lender v.Caldwell, 4 Kan. 339; Coburn v. Weed, 12 Kan. 182; Holcomb v.Dowell, 15 Kan. 379; St. L. S. F. Ry. Co. v. Shoemaker,38 Kan. 723, 17 P. 584; Stettauer v. Carney, 20 Kan. 474;Stapleton v. Orr, 43 Kan. 170, 23 P. 109; Windmill Co. v.Buchanan, 46 Kan. 314, 26 P. 708; Commissioners of WyandotteCo. v. Arnold, 49 Kan. 279, 30 P. 486.

The jury having returned their answers to the specific questions submitted, and no motion for a new trial having been filed for the re-examination of the facts, or to set such findings aside, the only question then left for the trial court was to render judgment on the facts as found, and if under the pleadings they support the judgment as rendered, on review in this court the same will not be disturbed.

3. In the case of Citizens' Bank v. Bolen et al.,121 Ind. 304, 23 N.E. 146, Mr. Justice Berkshire, in speaking for the court, said:

"If the verdict or finding does not cover all the issues in the case, or all the material facts involved in any of the issues, the remedy is by a motion for a new trial. * * *"

Where any one of the findings in a special verdict is not specific and certain, either party may require that it be made so before the jury is discharged. Kansas-Pacific Ry. Co. v.Pointer, 14 Kan. 51. In the case of the Hazard Powder Co. v.Viergutz, 6 Kan. 471 (1st Ed. p. 488) Mr. Chief Justice Kingman, speaking for the court, said:

"The ninth finding of fact is only by itself responsive to a portion of the question. It does not state what were the 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 be directed to make more perfect answers, and the defect would have been cured without the cost of another trial.Blackley v. Sheldon, 7 Johns. (N.Y.) 32."

The motion by plaintiff for judgment is, in part, as follows:

"That said special findings of the jury show a state of facts, as found by the jury, such as to entitle the plaintiff to a judgment against said defendants, and each of them, as prayed for in his petition heretofore filed in this cause."

The unanswered questions were submitted at the instance of the defendants. The plaintiff, having made no objection to the jury being discharged before said questions were answered, cannot be heard here to complain; and, had the defendants desired said questions answered, it was their duty to have then objected. In the case of Seybold v. Terre Haute IndianapolisR. R. Co., 18 Ind. App. 378, 46 N.E. 1058, Judge Black, in delivering the opinion of the court, said:

"It is well settled that when a party moves for judgment in his favor on a special verdict, and excepts to the overruling of his motion, or where a party excepts to the action of the court in rendering judgment upon a special verdict for his adversary, he thereby admits, so far as such action of the court is concerned, that the special verdict states the facts fully and correctly. * * *"

Section 4493, Wilson's Rev. Ann. St. 1903, provides that "the former verdict, report or decision shall be vacated and a new trial granted upon the application of the party aggrieved, for irregularity in the proceedings of the court, jury, referee or prevailing party, or any order of the court or referee, or abuse of discretion by which the party was prevented from having a fair trial." In the case of Halloway v. McIntosh,7 Kan. App. 34, 51 P. 963, the court said:

"It cannot be said that the court was guilty of any irregularity in not doing something to which its attention was not in any manner challenged, and therefore the failure to appoint a guardian was not an irregularity upon which to base a motion for a new trial."

In the case of Arthur v. Wallace, 8 Kan. 267, Mr. Justice Brewer, in delivering the opinion of the court, said:

"Then a motion for a new trial was filed, alleging as one reason therefor 'that the jury refused or neglected to find the special questions of fact as directed by the court.' We think this objection came too late. Whatever may be the rule where the jury wholly ignore the special questions submitted, we think that, when they attempt an answer, and the only objection that can be made is that it is not sufficiently full, attention should be called to the deficiency when the verdict is returned, and an opportunity given to make it more full and specific."

In the case of Clark v. Imbrie, 25 Kan. 424, the late Chief Justice Horton, speaking for the court, said:

"As no 'errors of law occurring at the trial' were stated in such motion, and as the only error complained of is one alleged to have occurred at the trial, such error was waived. Having been waived in the trial court, it cannot now be considered as any reason for the reversal of the judgment."

It is settled by a long line of decisions, both in the territory of Oklahoma, and also in Kansas, that errors of law occurring at the trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon and including such errors, has been made and overruled. Nesbit v.Hines, 17 Kan. 316; Atchison v. Byrnes, 22 Kan. 65; Decker v.House, 30 Kan. 614, 1 P. 584; Wilson v. Kestler, 34 Kan. 61, 7 P. 793; Buettinger v. Hurley et al., 34 Kan. 585, 9 P. 197; McNally v.Keplinger, 37 Kan. 556, 15 P. 534; Longfellow v. Smith,10 Kan. App. 575, 61 P. 875; Hardwick et al. v. Atkinson,8 Okla. 609, 58 P. 747; De Berry v. Smith, 2 Okla. 1,35 P. 578; Wood v. Farnham, 1 Okla. 375, 33 P. 867; Vaughn L. Co.v. Mo. H. L. Co., 3 Okla. 174, 41 P. 81; Carter et al., v.Mo. M. L. Co., 6 Okla. 11, 41 P. 356; Beberstein v.Territory, 8 Okla. 467, 58 P. 647; Boyd et al., v. Bryan etal., 11 Okla. 56, 65 P. 940; McDonald v. Carpenter,11 Okla. 115, 65 P. 942; City of Enid v. Wigger, 15 Okla. 511,85 P. 697. Neither any objection being made and exceptions reserved at the time, nor motion for a new trial having been filed and presented in the court below, the plaintiff waived his right to have such alleged error reviewed in this court.

4. Section 4471, Wilson's Rev. Ann. St. 1903 (section 4174, St. 1893), provides that:

"The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and inquiry made whether it is their verdict. If any juror disagrees the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, be corrected by the court."

In the case of City of Kingfisher v. Altizer, 13 Okla. 127,74 P. 109, the court, in construing this section, said: "The answers to the special interrogatories submitted by the defendant and returned by the jury were not signed, and therefore constitute no part of the verdict, and cannot be considered for any purpose" — and cited the cases of Greenbergv. Hoff, 80 Cal. 81, 22 P. 69, and Sage et al. v. Brown,34 Ind. 464. In Re City of Kingfisher v. Altizer, supra, it does not appear whether or not any objection was made to receiving the answers to the special interrogatories because no general verdict accompanied same, or that the answers were not signed by the foreman, or on any other ground, or that any request was made that the same be signed by the foreman. Nor was the question there considered as to whether or not it was necessary to assign such alleged error as a ground for a new trial, in order to have same reviewed on petition in error.

In the case of Sage et al. v. Brown, 34 Ind. 469, the court said:

"It is not necessary for us to decide in this case, and we do not decide, how far the consent of the parties can dispense with the requirements of the statute that the verdict of the jury should be returned into open court. But it is evident that when the parties, in the case under consideration, consented that the verdict might be sealed up and delivered to the clerk of the court, it was with the understanding that the general and special verdicts should be reduced to writing and signed by the foreman. This was not done; and, in our judgment the consent given can not be regarded as a waiver of the performance of such acts as were necessary to the validity of the verdict. The effect of the agreement was that when the verdict was reduced to writing and signed by the foreman, it might be delivered to the clerk of the court, and he should open the verdict in court, without the presence of the jury. The jury having been discharged, their functions as such had ceased, and the court had no power to reassemble them. It was the duty of the court to have awarded a venire de novo. The court erred in overruling the motion for a new trial, and for this error the cause must be reversed."

The California case cited seems to hold that such provision is mandatory, and unless the verdict is signed, it is absolutely void. But so far as we have been able to find, it stands solitary and alone. In the case of Northern Pacific R.R. Co. v. Urlin, 158 U.S. 277, 15 Sup. Ct. 842, 39 L.Ed. 977, Mr. Justice Shiras, in delivering the opinion of the court, said:

"The contention that the judgment below was invalid because the verdict of the jury was not signed by the foreman, as required by a section of the Code of Montana, is, in our opinion without merit. The record discloses that when the verdict was rendered, at the request of the defendant, the jury was then and there polled by the clerk, and each of said jurors answered that the verdict as read was theirs, whereupon the plaintiff moved for judgment in accordance with said verdict; the motion was granted, and judgment was ordered accordingly. No objection was made or request that the verdict should be signed was then made by the defendant, and we think that the court below was justified in treating the irregularity, if such it were, as having been waived."

The settled weight of authority supports the rule announced by the Supreme Court of the United States in the above case which was the controlling tribunal as to the decisions of the Supreme Court of the territory of Oklahoma at the time the decision was rendered in the case of the City of Kingfisher v.Altizer, supra. Curley et al. v. O'Dwyer, 61 Mo. App. 349;Morrison v. Overton, 20 Iowa, 465; Patterson v. Murphy,63 Ga. 281; Burton v. Bondies, 2 Tex. 203; Hardy v. State, 19 Ohio St. 579;Berry v. Pusley, 80 Ky. 166. We conclude that had objection been made to the receiving of the answers, on the ground that they were not signed by the foreman, or had request been made that the same be signed, and the court had overruled such objection or denied such request, in either event it would have been error; that answers to special interrogatories submitted to and returned by the jury not signed, over the timely objection of either party, cannot be considered as constituting a part of the verdict, and cannot legally be considered for any purpose. But when neither objection to the receiving of the same unsigned, nor any request that the same be signed, is made, the plaintiff waived the right to complain of such alleged error in this court. Had the plaintiff made timely objection, but failed to assign such objection as error in a motion for a new trial, as to whether or not such objection could avail on review in this court is not now before us for determination.

5. In the case of Wadsworth v. Dunnam, 117 Ala. 670, 23 So. 702, the late Chief Justice Brickell, in delivering the opinion of the court, said:

"The doctrine of the common law, as it is laid down in the text-books, and supported by numerous adjudications, is that, 'if any part of the entire consideration for a promise, or any part of an entire promise, is illegal, whether by statute or at common law, the whole contract is void. Indeed the court go far in refusing to found any rights upon wrongdoing.' 1 Parsons on Contracts, 456; 1 Parsons, Notes Bills, 217; 1 Dan. Neg. Ins., sec. 196; Story, Prom. Notes, § 189; Bishop on Contracts, § 471; Clark on Contracts, 472; 1 Smith Lead. Cases (8th Ed.) 736; Carrington v. Caller, 2 Stew. (Ala.) 175; Pettit v.Pettit, 32 Ala. 308; Wynne v. Whisenant, 37 Ala. 46; Patton v.Gilmer, 42 Ala. 548, 94 Am. Dec. 665; Cotton v. McKenzie,57 Miss. 418; Widoe v. Webb, 20 Ohio St. 431, 5 Am. Rep. 664;Deering v. Chapman, 22 Me. 488, 39 Am. Dec. 592; Kidder v.Blake, 45 N.H. 530."

In notes, where the consideration includes items which involve the violation of the law, and other items having no connection with an illegal or forbidden act, the transaction involving those items being legal, when they are blended and a note taken for the whole, the same is indivisible, and there can be no recovery upon it. Cotton v. McKenzie, 57 Miss. 418;Widoe v. Webb, 20 Ohio St. 431, 5 Am. Rep. 664; Kidder v.Blake, 45 N.H. 530. If there be items in an account closed by a note not tainted with illegality, unconnected with an illegal transaction or prohibited act, action may be maintained on the original contract, though a new note had been taken therefor; but the note if tainted with illegality, is utterly void, incapable of discharging a just indebtedness. A note and mortgage, executed and delivered by the mortgagor to the mortgagees with an express understanding therefor that a prosecution for a felony shall be discontinued, is void and not enforceable. Sumner v. Summers, 54 Mo. 343; McCoy v. Green, 83 Mo. 632; Cheltenham Fire Brick Co. v. Cook, 44 Mo. 29; Collinsv. Blantern, 2 Wils. 341; Fosdick v. Van Arsdale etal., 74 Mich. 302, 41 N.W. 932; Amestoy v. Electric RapidTransit Co., 95 Cal. 311, 30 P. 550; Friend et al. v. Miller,52 Kan. 139, 34 P. 398, 39 Am. St. Rep. 340; Budd v.Rutherford, 4 Ind. App. 386, 30 N.E. 1112. Under the special answers returned by the jury in this case, as a part of the consideration of this note the criminal prosecution pending against Samuel Sampson for disposing of mortgaged property was to be discontinued, and it is therefore void.

6. The further question arises, however, in view of the fact that the jury found that, after the defendants were released from jail, and the note and mortgage had been signed and delivered, and the $100 was received by Mrs. Sampson, she and her husband thereafter ratified this note and mortgage, whether or not such a contract could be ratified. In the case of Earl ofChesterfield v. Sir Abraham Janssen, 1 Atk. 354 (Eng. Rep. Full Reprint, vol. 26, Chancery Book 6, p. 226), the Earl of Hardwicke, as Lord Chancellor of the High Court of Chancery, said:

"If the first bond had been void at law, no new agreement would have made it better. The original corruption would have infected it throughout. But as bargains that are not cognizable at law are properly the subject of this court's consideration, new agreements and new terms may confirm what might otherwise have admitted a question as to the fairness of it."

In the case of the Earl of Chesterfield v. Sir AbrahamJanssen, 2 Ves. Sr. 159 (Eng. Rep., Full Reprint, Vol. 28, Chancery Book 8, p. 102), the Lord Chancellor said:

"Had the first bond been void by the statutes of usury, no new engagement would have made it better. The original would have infected it. But if a man is fully informed, and with his eyes open, he may fairly release, and come to a new agreement, and bar himself of relief, which might be had in this court."

In the case of McHugh v. County of Schuylkill, 67 Pa. 395, 5 Am. Rep. 445, the court said:

"From the answers to the defendant's points, and the charge of the court, the learned judge appears to have instructed the jury that if the plaintiff subsequently approved and acquiesced in this void act, or ratified it, or subsequently approved of it, then the bond was binding upon him. No new consideration of any kind was either alleged or pretended, and the cases ofDuncan v. McCullough, 4 Serg. R. (Pa.) 483, Chamberlain v.McClurg, 8 Watts S. (Pa.) 31, 36, Goepp's Appeal, 3 Harris (Pa.) 428, show clearly that under the circumstances the act simply retains its original character, and is entirely void."

In the case of Shisler v. Van Dike, 92 Pa. 449, 37 Am. Rep. 702, the court said:

"Where the fraud is of such character as to involve a crime, the ratification of the act from which it springs is opposed to public policy, and hence cannot be permitted, but where the transaction is contrary only to good faith and fair dealing; where it affects individual interest, and nothing else, ratification is allowable. It is indeed conceded, in the cases last above cited, that if the original contract be illegal, or void for want of consideration, no subsequent ratification will help it."

In the case of Shelton v. Marshall, 16 Tex. 344, the court held that when an original contract is prohibited and an offense at law, any subsequent contract which carries it into effect is also illegal, and whenever, in cases of this character, the subject-matter of the contract can be traced back, between privies, to such an original illegal contract, the substituted security is void; and, even if the parties liable in the last security were not privy to the illegal bargain, the same result has been held to prevail, if the true destination of such security was to secure a bargain, made by others, for the use of him who was to reap the fruits of the bargain. In the case of Armstrong v. Toler, 11 Wheat. 258, 6 L.Ed. 468, Mr. Chief Justice Marshall, in delivering the opinion of the court, said:

"Questions upon illegal contracts have arisen very often, both in England and in this country, and no principle is better settled than that no action can be maintained on a contract, the consideration of which is either immoral in itself or prohibited by law. How far this principle is to affect subsequent contracts, the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen and many decisions have been made."

It is settled by the overwhelming weight of authority that where a contract is illegal, on account of involving the commission of a crime, such contract cannot thereafter be ratified. But where the act is one of conscience — one of fraud between individuals, and not an offense against the state or organized society — that question is not presented in this record.

Failing to find any reversible error, the judgment of the lower court is affirmed.

All the Justices concur.