McCullough v. Martin

• Decision Date: 20 February 1895
• Docket Number: 792
• Citation: 39 N.E. 905,12 Ind.App. 165
• Parties: MCCULLOUGH, ADMINISTRATOR, v. MARTIN
• Court: Indiana Appellate Court

39 N.E. 905

12 Ind.App. 165

MCCULLOUGH, ADMINISTRATOR, v. MARTIN

No. 792

Court of Appeals of Indiana

February 20, 1895

From the Orange Circuit Court.

Judgment affirmed.

D. M Alspaugh, J. C. Lawler, W. Farrell and C. L. Jewett, for appellant.

S. H Mitchell, R. B. Mitchell, J. A. Zaring and M. B. Hottel, for appellee.

OPINION

LOTZ, J.

This action was based upon a promissory note filed by the appellee as a claim against the estate of appellant's decedent. The note bore date of February 27, 1889, and was due in sixteen months after date.

The claim was rejected and transferred to the issue docket for trial. No formal answer was filed, but the appellant relied upon the defense as allowed by the statute. A trial by jury resulted in a verdict for appellee in the sum of $ 2,297.80 upon which final judgment was rendered.

The appellant sought to defeat the claim on the ground (1) that the note was a forgery; (2) that it was without any consideration, and gave evidence which tended to support these defenses.

A motion for a new trial was overruled. This ruling is the only error assigned in this court. It is first insisted that the verdict is not sustained by the evidence. We have examined the evidence and find it conflicting on many of the material points. This court will not weigh it under such circumstances. The next cause for a new trial discussed by counsel is in the words: "(5) The court erred in refusing to submit to the jury and to require the jury to answer and return with their general verdict interrogatories numbered one, two and three, as propounded and requested by said defendant." The interrogatories asked and refused by the court are as follows:

"(1) Was the note in suit executed by Edmund W. Martin, the deceased?

"(2) If you answer the foregoing interrogatory in the affirmative, was said note intended by said Edmund W. Martin as a gift to the plaintiff?

"(3) If you answer the first interrogative in the affirmative, state whether the note in suit was executed by Edmund W. Martin, deceased, and received by plaintiff as a gift from Edmund W. Martin, deceased, to be paid out of the estate of Edmund W. Martin after his death."

By section 555, R. S. 1894 (section 546, R. S. 1881), it is provided that in all cases when requested by either party the court shall require the jury, if it return a general verdict, to find specially upon particular questions of fact, to be stated in writing. By "particular questions of fact" something less than an issue in the case is intended. These particular facts should be pertinent to, and involved in, the issues, and such as are impliedly covered by the general verdict. The purpose of such special findings is to test the correctness of the general verdict. Manning v. Gasharie, 27 Ind. 399 (409); Blacker v. Slown, 114 Ind. 322, 16 N.E. 621.

It may be conceded that in a proper case it is the duty of the trial court to submit interrogatories to the jury, and that a refusal so to do is reversible error. Clegg v. Waterbury, 88 Ind. 21; Campbell v. Frankem, 65 Ind. 591; Miller, Admr., v. White River School Tp., 101 Ind. 503.

But if the interrogatories requested will be sufficiently answered by the general verdict, it is not error to refuse them. Uhl v. Harvey, 78 Ind. 26 (29).

A general verdict covers all the issues in the case. The issues in this case were, first, the execution of the note, and the execution included delivery to the payee. The burden of establishing this issue rested upon the claimant. Ruddell v. Tyner, Admr., 87 Ind. 529.

This issue included the question of forgery raised by the defendant.

The second issue was want of consideration.

The note itself contained these words, "I promise to pay." These words of themselves imported a consideration. The burden of establishing want of consideration rested upon the appellant. Going back to the time when the interrogatories were presented in the trial court, the appellant realizing that a general verdict might be rendered against him, endeavored to test its correctness by interrogatories. A general verdict for the defendant would mean either that the note was not executed, or, if executed, that it was without consideration. A general verdict for the plaintiff would mean that the deceased did execute the note upon a valid consideration.

The first interrogatory inquired for a fact upon which the right of recovery depended. It was fully covered by, and would be answered by the general verdict. Uhl v. Harvey, supra.

It is however, insisted that it is but preliminary to the other interrogatories; that it is necessary in order to form a basis for propounding them, and that it would be an extremely technical holding to exclude it under such circumstances. We are inclined to agree with this contention. But are the other interrogatories proper? Interrogatory number two inquires whether or not the note was intended as a gift by the maker. A promissory note is but a promise to pay money in the future, and if executed purely as a gift it is without...