Tobin v. Gantt , 78 Okla. 73 ( 1920 )

This case was tried, without objection, to a jury and seven interrogatories submitted, two of which were not answered. The reasons urged for reversal are: (1) Errors in instructions to the jury; (2) failure of the jury to answer two of the interrogatories; (3) judgment is not supported by the evidence.

While questions of fact may be submitted to a jury, in cases of equitable cognizance, its verdict is merely advisory, and may be adopted or rejected by the court, whose duty it is ultimately to determine all questions, both of fact and of law. Alleged errors in the instructions to the jury, in such cases, afford no ground for reversal upon appeal. Anderson v. Kelley,57 Okla. 109, 156 P. 1167.

In addition to a rescission of the contract, plaintiffs below asked judgment for return of money they had expended under the contract prior to the discovery of fraud. It is contended this presented an issue of fact which defendants were entitled to have tried by a jury, and for that reason the errors complained of in the instructions justify the reversal. It has been held that when an action is in the main for rescission of a contract, and the return of money expended under the contract is also prayed for, the action is one of equitable cognizance, the controversy hinging upon rescission of the contract, the recovery of money expended being a mere incident. Benn v. Trobert, 76 Okla. 184, 184 P. 595; Probst v. Bearman,76 Okla. 71, 183 P. 886; Andrews v. Thayer, 69 Oklahoma,171 P. 1117.

In answering interrogatory No. 1, the jury found defendants had made fraudulent representations to plaintiffs, and in answering interrogatory No. 5, fixed the amount of money paid out under the contract at $287.08. Interrogatory No. 6, not answered, was whether both plaintiffs and defendants had made false and fraudulent representations to each other. It was unnecessary to answer this interrogatory as to representations made by defendants, that being answered in the first interrogatory. The burden of proof was on defendants to prove false representations on the part of plaintiffs, and the general rule seems to be that where special findings fail to find a fact in issue such silence will be regarded as equivalent to an express finding against the party having the burden of proof on such issue. 38 Cyc. 1924. Interrogatory No. 7, not answered, inquired as to the amount of plaintiffs' damages by reason of defendants' fraudulent representations. It was unnecessary to answer this interrogatory, for the reason that in answering No. 5, the amount of money paid out was found to be $287.08, being the amount plaintiffs were entitled to recover as damages and the amount for which judgment was rendered in their favor. Failure of a jury to whom a case is submitted on special issue of fact to answer a question which is immaterial, in view of other findings, does not vitiate their verdict, when, taken as a whole, the verdict is sufficiently comprehensive to support a judgment which properly disposes of the case. Columbus Power Co. v. City Mills Co.,114 Ga. 558, 40 S.E. 800; State v. Farish, 23 Miss. 483; Fairbanks Co. v. Simmons et al., 103 Kan. 202, 173 P. 277; Minton v. Wilkerson et al. (Tenn). 182 S.W. 238; 38 Cyc. 1924.

Under the settled rule in such cases, the judgment of the trial court must be affirmed unless it appears to be clearly against the weight of the evidence. From an examination of the record, it does not so appear, and the judgment is affirmed.

RAINEY, PITCHFORD, JOHNSON, McNEILL, and BAILEY, JJ., concur.