Archambeau v. Edmunson

• Decision Date: 26 February 1918
• Parties: ARCHAMBEAU v. EDMUNSON ET AL.
• Court: Oregon Supreme Court

171 P. 186

87 Or. 476

ARCHAMBEAU v. EDMUNSON ET AL.

Supreme Court of Oregon

February 26, 1918

Department 2.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by F. A. Archambeau against Donna Edmunson and others. On defendants' motion a judgment and verdict for plaintiff was set aside, and thereafter the court on its own motion set aside a second judgment and granted new trial, from which order defendants appeal, and plaintiff cross-appeals from the order setting aside the first judgment. Affirmed.

This was an action to recover damages for the alleged breach of an agreement. The complaint, as far as deemed material herein substantially charges that on September --, 1912, a written contract was subscribed by the parties whereby the defendants, in consideration of the payment of $150 an acre stipulated to sell and convey to the plaintiff a sand and gravel bar in the Willamette river on the Blighton farm in Lane county, Or., and within a designated time they would procure a survey of the land and deposit with a specified bank an abstract showing a marketable title to the tract and a deed conveying it to the plaintiff; that pursuant to the terms of the agreement he took possession of the land, made valuable improvements thereon, and paid $400 on account of the purchase price; that the written contract was subsequently modified so that plaintiff agreed to pay $175 an acre for the premises; that without his consent the defendants sold and conveyed to a third person a part of the tract which they had stipulated to grant to the plaintiff, to his damage, etc. The answer denies the material averments of the complaint and for a further defense, so far as considered important, alleges in effect that no written agreement had ever been consummated by the parties; that the defendants had fully performed all the terms of an oral agreement to sell and convey the land, causing the premises to be surveyed and tendered a deed therefor to the plaintiff from whom they demanded the remainder of the consideration, but he refused to comply therewith. For another defense and by way of counterclaim the answer charges that the plaintiff hauled away from the bar sand and gravel of a specified value, and upon demand for the payment thereof he refused to adjust the matter to the defendants' damage. A reply put in issue the allegations of new matter in the answer. At the trial of the cause testimony was received on the part of the defendants tending to show that a writing was subscribed by them and left with their attorney from whom, without their consent, an agent of the plaintiff obtained the document for the represented purpose of making a copy, and thereupon delivered the paper to his principal who signed it. When all the testimony had been received, the court addressing plaintiff's counsel inquired:

"If the jury should find that this contract was never delivered to the plaintiff, then do you concede that your case would fail?"

The counsel replied:

"No sir; I do not.

"The Court: Suppose that the jury should find that this contract was never consummated, never delivered?

"Counsel Even in that event, we would be entitled to our money back on the ground that the violation of the contract was willful.

"The Court: You would not contend that you would be entitled to any more than your money back?

"Counsel If they found that no contract was delivered, all we would be entitled to would be upon the basis of a rescission. Our money back.

"The Court: That is one of the special questions that I am going to submit to the jury."

Thereupon written interrogations, without objection or exception, were propounded by the court to the jury, who answered them as follows:

"Question No. 1. Was the written contract Exhibit A delivered by the defendant to the plaintiff? Answer: No.

"Question No. 2. Did the defendants offer to convey to the plaintiff all the land which they agreed to convey? Answer: No.

"Question No. 3. How much, if any, is the plaintiff entitled to as general damages? Answer: $1,600.

"Question No. 4. How much, if any, are the defendants entitled to recover on account of sand and gravel removed from the premises? Answer: Nothing."

A general verdict was also returned in plaintiff's favor for $1,600, and a judgment was entered therefor. The defendants' counsel then moved to set aside such determination and for a judgment in favor of their clients on the ground that the general verdict was inconsistent with the special findings, which motion was granted. Thereupon the court, upon its own motion, deeming that its charge to the jury, which was not challenged in any manner, was not sufficiently specific in respect to the alleged delivery of the written contract, set aside the latter judgment and granted a new trial, from which order the defendants appealed. Thereafter the plaintiff also took a cross-appeal from the order setting aside the first judgment.

Chas. A. Hardy and John M. Williams, both of Eugene (Williams & Bean, of Eugene, on the brief), for appellant. Fred E. Smith and C. M. Kissinger, both of Eugene (J. H. Bower, of Florence, and W. G. Martin, of Eugene, on the brief), for respondents.

MOORE, J. (after stating the facts as above).

Considering these appeals in reverse order, it is contended by plaintiff's counsel that an error was committed in submitting to the jury the first interrogatory, which it is asserted involved an issue of law that should have been determined by the court, and that though the written contract may not have been actually delivered, the inquiry took from the jury a consideration of the question as to whether or not the alleged agreement was acted upon by the parties and thereby ratified so as to become a binding obligation, and for these reasons the first judgment was improperly set aside. A textwriter, referring to such interrogatories, remarks:

"If the questions asked are defective, the court's attention should be called to the fact before they are submitted, otherwise they will not be closely criticized on appeal. But if questions are omitted which a party thinks should be submitted, he cannot raise the question by objecting to the submission of the draft. His remedy is by submitting an additional draft containing the facts on which he desires findings." Clementson, Special Verdicts, p. 69.

This author further observes:

"Objections to form must be made at the time of submission, otherwise it will be presumed that there was assent to the submission of questions as drawn by the court." Id. 193.

As no objections to the interrogatories submitted were interposed, nor additional drafts suggested, so as to call to the court's attention the facts now urged in respect to a possible ratification of the terms of the alleged contract, all questions relating to that subject were thereby waived.

In support of the assertion that the first interrogatory involved a question of law, reliance is had upon the case of White v. White, 34 Or. 141, 158, 50 P. 801, 55 P. 645, where, over objection, an issue was submitted requiring a special verdict as to the delivery of a deed, and it was held that the investigation demanded properly related to a probative fact upon which the rights of the parties depended and was determinative of the case, and that the interrogatory did not refer to mere evidentiary facts, which might afford only prima facie proof of some other fact. In that case the inquiry submitted, omitting names, was in effect: Did the deceased in his lifetime voluntarily place the deed in question in possession and control of the defendant, the grantee named in the sealed instrument? An objection was interposed to the question on the ground that it was inconclusive, immaterial, and misleading. The jury answered the inquiry in the affirmative.

When there is any controversy upon the subject, the delivery of a deed is always a question of fact. 2 Jones, Real Prop. § 1220. In Flint v. Phipps, 16 Or. 437, 439, 19 P. 543, 545, Mr. Justice Strahan, in speaking of a deed remarks:

"The question of delivery is purely a question of fact."

In State v. Leonard, 73 Or. 451, 483, 144 P. 683, Mr. Justice Ramsey in referring to this subject observes:

"The question of delivery is always a question of fact for the jury where there is any conflict in the evidence in relation thereto."

A text-writer, discussing this matter, says:

"Some courts have stated broadly that delivery is a question of fact. Taken literally, however, this declaration is, perhaps, too sweeping, as ignoring the occasional instances in which the undisputed facts establish delivery as a matter of law. And strictly speaking the question is rather one of mixed law and fact, for from the detail of facts established the legal conclusion must be drawn, though, since the jury usually must find a delivery or not, or else the circumstances from which the court may draw its conclusions, the question may properly be denominated, as has been done in a number of cases, largely one of fact, being so much so, indeed, that the decision of the lower court is conclusive unless the specific facts found conclusively establish the contrary." 8 R. C. L. 976.

The rule established sustains the statement that an interrogatory should not be submitted to the jury which calls for a conclusion of law (38 Cyc. 1912, 1917), and in order to sanction a judgment rendered thereon, special verdicts must contain statements of ultimate facts. Id. 1921. As no objection was interposed to the form of the inquiry, an answer to which required a consideration and determination on the part of the jury of the ultimate fact relating to the delivery of the written contract and not the mere evidentiary facts from which the fact, incapable of further analysis, was...