Cox v. The Northwestern Stage Co

• Decision Date: 01 January 1871
• Parties: Emma E. Cox, Respondent, v. The Northwestern Stage Company, Appellant.
• Court: Idaho Supreme Court

1 Idaho 376

Emma E. Cox, Respondent, v. The Northwestern Stage Company, Appellant.

Supreme Court of Idaho

January 1, 1871

WRITTEN INSTRUMENTS-"DUE EXECUTION."-The due execution of an instrument in writing goes to the manner and the form of its execution, by a person competent to execute it according to the laws and customs of the country where executed.

IDEM-"GENUINENESS" OF AN INSTRUMENT.-The genuineness of an instrument in writing goes to the question of its having been the act of the party just as represented; or, in other words, that the signature is not spurious, and that nothing has been added to or taken from it, which would lay the party signing or changing the instrument liable for forgery.

PRACTICE.-A failure by plaintiff to deny, by affidavit, the genuineness and due execution of an instrument in writing set forth in the answer as the foundation of the defense, does not preclude the plaintiff from showing, on the trial, that it was procured by fraud or misrepresentation.

CONTINUANCE - POSTPONEMENT - DISCRETION. - Postponing a trial rests in the sound discretion of the court; and this court will not review that discretion, unless there appears to have been a very gross abuse in its exercise.

WEIGHT OF EVIDENCE-VERDICT.-When there is some evidence to sustain each of the material questions upon which a jury is bound to find in order to support a verdict, this court ought not to disturb the verdict, even if the court would have found differently on any or all of the issues.

FRAUD-WEIGHT OF EVIDENCE.-If there is some evidence tending to show fraud the question, whether or not there actually was fraud, is to be submitted to the jury.

SEALED INSTRUMENT.-An instrument under seal, not required by law to be sealed to give it effect, gives it no more solemnity, or makes it no more binding upon the party sought to be charged thereby, than if not under seal.

JURY-PRESUMPTION.-A jury is presumed to have found its verdict upon the facts without having been influenced by passion or prejudice, and where a verdict is for a less sum than the full amount demanded in the prayer of the complaint, this presumption is strengthened. That a jury has been influenced by passion or prejudice must be made to appear affirmatively.

APPEAL from the Second Judicial District, Ada County.

H. L Preston, Joseph W. Huston and H. E. Prickett, for the Appellants. E. J. Curtis and McBride & Henly, for the Respondent.

WHITSON, J.,

delivered the opinion;

LEWIS J., concurring. NOGGLE, C. J., dissented.

On the thirty-first day of October, 1870, Emma E. Cox commenced in the district court of Ada county an action against the Northwestern Stage Company, of which Fuller, Parker & Co. were proprietors, alleging in her complaint that on the 26th of September, 1870, the said company were common carriers of passengers for hire by stage-coach, between Silver City in the county of Owyhee and Boise City in the county of Ada; that on said day the defendants received her upon their stage-coach to be carried from Babbington's

station in Owyhee county, to Bernard's station in Ada county, on the line of said stage route; that while she was such passenger between said stations the coach upon which she was being carried was by the carelessness and negligence of the defendants overturned and thrown down, by means whereof she was greatly bruised, wounded, and permanently injured in body, and had so continued from the day of the accident up to the commencement of the action, whereby she was damaged generally in the sum of twenty thousand dollars, and specially in the sum of six hundred dollars, for which she asked judgment. On the 7th of November, 1870, the district court convened, and on the 18th of November, the defendants filed their answer denying every material allegation in the complaint, except that they were common carriers; and also set up as a bar to the action, that on the 26th of September, the plaintiff executed an instrument of writing under her hand and seal, whereby she had released the company from any and all liability on account of any injury she had received by reason of the accident; which instrument was set up by copy in the answer. On the 19th of November, defendants moved for judgment on the pleadings, for the reason that the plaintiff had filed no affidavit denying the due execution and genuineness of the instrument of writing which had been set up by copy in the answer. The court overruled the motion and defendants excepted. On the same day defendants moved for a continuance, on the affidavit of E. S. Hubbell, which was resisted upon the counter-affidavit of plaintiff. The court overruled the motion and defendants excepted.

On the 21st of November, the cause went to trial, and continued until the 23d, when the court charged the jury, who, on the same day, returned a verdict for plaintiff for fifteen thousand dollars general, and two hundred and eighty dollars especial, damages. Defendants moved for a new trial. The motion was heard and determined adversely to the motion, on the 24th of December, to which defendants excepted.

The defendants appeal to this court, and the questions presented for our consideration are: 1. Did the court err in re-

fusing to give the defendants judgment on the pleadings? 2. Did the court err in refusing to postpone the trial? 3. Did the court err in charging the jury upon matters of law? 4. Did the jury give damages not supported by the evidence as applied to the law given by the court?

The discussion of the first proposition involves a question of practice under the statute only. Sections 53, 54, and 65 of the Civil Practice Act provide as follows:

Sec. 53. "When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same be verified.

Sec. 54. "Where the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the plaintiff file with the clerk, five days before the commencement of the term, at which the action is to be tried, an affidavit denying the same; provided, that the due execution of the instrument shall not be deemed to be admitted by a failure to controvert the same on oath, as prescribed in this and the last preceding section, unless the party controverting the same is, upon demand, permitted to inspect the original before filing such answer."

Sec. 65. "Every material allegation of the complaint, not specially controverted by the answer, shall, for the purposes of the action, be taken as true; the allegation of new matter in the answer shall, on trial, be deemed controverted by the adverse party."

It is claimed by the defendants that the plaintiffs, in not denying under oath the genuineness and due execution of the release set up by them in their answer, should be deemed to have admitted its genuineness and due execution. While we do not think that section 65 denies for the plaintiff the genuineness and due execution of the written instrument set up as a bar by the defendants, there can be no doubt but

that such section does controvert for the plaintiff every other fact alleged by the defendants and set up as new matter by way of defense. There can be no doubt but that section 54 was intended to vary the general rule provided for in section 65, and the question arises, What did the plaintiff admit by not filing an affidavit?

Evidently she admitted nothing, except that release was genuine and duly executed; for section 65 has controverted for her every other allegation of new matter in the answer, which is alleged affirmatively therein, or which follows as a deduction therefrom.

Defendants say to plaintiff, in their answer, substantially: "You have given us a release of all demands you ever had against us, and you have done this under your hand and seal, and the law presumes that such instrument was genuine, and duly executed, and, as a necessary deduction, that you intended everything which could be claimed under the release."

Plaintiff says to defendants, in her reply, which the law puts in for her: "I admit that such release was duly executed by me, and that it is genuine; but I deny that I intended what the terms of the writing imply, and contend that it was obtained by fraud and misrepresentation." Could plaintiff truthfully say more? Could plaintiff have denied the due execution and genuineness of that instrument without committing perjury, and yet it be true, as a matter of fact, that she was in every way competent to, and, in fact, did execute the very instrument alleged in the answer, in the manner and form as set up therein? We think not. The due execution of an instrument goes to the manner and form of its execution according to the laws and customs of the country, by a person competent to execute it. The genuineness of an instrument evidently goes to the question of its having been the act of the party just as represented, or, in other words, that the signature is not spurious; and that nothing has been added to it, or taken away from it, which would lay the party changing the instrument, or signing the name of the person, liable for forgery.

If Fuller, Parker & Co. should, through their authorized

agent go to A, a stock-raiser in this valley, and should execute a note for two hundred dollars to him, as the consideration for a fine stage horse of which he represented himself and of which they believed him to be the owner, but which in fact belonged to B, would any lawyer say that because the consideration had...