Mount v. Board of Commissioners of County of Montgomery

• Decision Date: 20 March 1907
• Docket Number: 20,721
• Citation: 80 N.E. 629,168 Ind. 661
• Parties: Mount v. Board of Commissioners of the County of Montgomery
• Court: Indiana Supreme Court

80 N.E. 629

168 Ind. 661

Mount v. Board of Commissioners of the County of Montgomery

No. 20,721

Supreme Court of Indiana

March 20, 1907

Rehearing Denied June 25, 1907.

From Fountain Circuit Court; John S. Lairy, Special Judge.

Action by Finley P. Mount against the Board of Commissioners of the County of Montgomery. From a judgment for defendant plaintiff appeals.

Affirmed.

S. C Kennedy, for appellant.

Irvin C. Dwiggins, R. H. Williams and W. T. Whittington, for appellee.

OPINION

Gillett, J.

Appellant sought by this action to recover $ 3,600 from the county of Montgomery. His demand was based on the claim that he had furnished the testimony necessary to secure, and had thereby secured, the conviction of thirty-six persons, charged with vote selling. On issues joined, there was a trial by the court, and, pursuant to a request for a special finding, the court found the facts specially, and stated as its conclusion that the law was with the defendant. Appellant assigns as error that the court erred in its conclusion of law.

The findings are quite long, and, except as they have to do with the contentions on appeal, we shall only attempt to exhibit them in outline. It appears that during the political campaign of 1900 two persons, Thompson and Benjamin by name, corrupted thirty-six voters of said county, thereby rendering them liable to the penalties prescribed by section one of the act of March 1, 1899 (Acts 1899, p. 381, § 2329 Burns 1901). On or about November 30, 1900, Thompson and Benjamin counseled with appellant, who was an attorney at law, for the purpose of ascertaining whether they had violated any federal statute. Thompson held the receipts of said voters, and, during the course of said conversation, a plan was discussed, to the ultimate effect that appellant should seek to recover the statutory rewards, and that there should be a division between the three of such moneys as might be obtained on account of the conviction of said voters. A part of the plan outlined was that appellant should seek to induce certain members of another political party to prosecute certain of its voters, but, as the efforts in this direction failed, Thompson declined to have anything further to do with the matter, and also refused to turn over the receipts. Within a day or two afterwards, appellant prepared the form of a written contract, to be executed by the three, which provided that Thompson and Benjamin should prosecute said voters, that the receipts aforesaid be turned over to appellant, and that whatever rewards should be obtained for the conviction of said voters should be divided equally among the three. Appellant and Benjamin signed this contract, but Thompson refused to sign, and the entire matter of the prosecution of said voters was dropped. A few days later appellant called upon Benjamin, and sought to get him to furnish the names of said voters and to make the necessary affidavits, so that appellant might commence said prosecutions. Benjamin refused to do this, and appellant then made an unsuccessful effort to procure such names from Thompson. Benjamin afterwards came to the office of appellant, and gave him the names of said voters, and appellant prepared forms of affidavits and information against them for the violation of said statute. On November 15, 1900, Benjamin again called at the office of appellant, and the latter at that time demanded of Benjamin that he sign the affidavits, but he left the office without doing so. At this point we quote from finding three as follows: "That afterwards, and on the same day at 5:30 o'clock p. m., said Benjamin came to the office of said plaintiff, in answer to a telephone call from said plaintiff, and, upon reaching the office, said plaintiff demanded of said Benjamin, in strong and forceful language, that he sign and swear to the affidavits hereinbefore mentioned; that said plaintiff at said time said to Benjamin that, if he would sign said affidavits and come into court willingly and give his testimony in the cases against said persons so charged in said affidavits with selling or offering to sell their votes, he [plaintiff] 'would treat him [Benjamin] right about the matter;' that thereupon said Benjamin signed and swore to the affidavits; * * * that it was understood between said Benjamin and said Mount before the commencement of said prosecutions that whatever rewards were recovered from the prosecution and conviction of said voters of Montgomery county, for selling or offering to sell their votes at said election held November 6, 1900, should be shared and divided between them, no amount of division being fixed; that, in pursuance of this agreement, Benjamin signed and swore to the affidavits upon which said prosecutions were based, and also gave his testimony in said prosecutions, and afterwards, in September or October, 1901, said Benjamin was paid $ 100 by Mount, in full settlement of his share of the rewards which might be recovered on account of said prosecutions." It is further found that upon the evidence furnished by Thompson and Benjamin appellant prosecuted, and, at the January term, 1901, of the Montgomery Circuit Court, secured the conviction of said voters.

It is contended on behalf of appellant that for the most part the findings fail to set forth the ultimate facts on which the defense is predicated. It is, however, to be recollected that where the primary facts lead to but one conclusion, there is no occasion for a statement of the ultimate fact. Smith v. Wells Mfg. Co. (1897), 148 Ind. 333, 46 N.E. 1000. And see Smith v. Wabash R. Co. (1895), 141 Ind. 92, 40 N.E. 270. Some of the preliminary findings, while evidentiary in their character, tend to explain or give color to finding three, and to that extent are to be regarded. It appears from these preliminary findings that appellant was active in putting on foot the arrangement to secure the rewards, that he importuned Benjamin to furnish him the names of the voters, and that in strong and forceful language he demanded of Benjamin that he sign and swear to the affidavits. In the conversation which preceded the commencement of the prosecutions, appellant said to Benjamin that if he would make the affidavits and come into court willingly and give his testimony in the cases, he (appellant) "would treat him [Benjamin] right," and "thereupon," the finding proceeds, "Benjamin signed and swore to the affidavits." It may be that in the subsequent finding, as to what was "understood" between Benjamin and appellant, the court did not express itself as accurately as if it had found that the matter was agreed to by them, but the words "understood" and "agreed" may be used synonymously. Higginson v. Weld (1859), 14 Gray 165; Barkow v. Sanger (1879), 47 Wis. 500, 3 N.W. 16; Bullock v. Johnson (1900), 110 Ga. 486, 35 S.E. 703; Saltmarsh v. Bower & Co. (1859), 34 Ala. 613; Griffin v. Isbell (1850), 17 Ala. 184; Winslow v. Dakota Lumber Co. (1884), 32 Minn. 237, 20 N.W. 145; 8 Words and Phrases, p. 7162, title, Understanding. It will be observed that a little farther on the court refers to what was done "in pursuance of this agreement," thus showing the sense in which the court used the word "understood," and when to this is added the light that the negotiation throws upon the subject, and it is further considered that the court found that appellant afterwards paid Benjamin $ 100 "in full settlement of his share of the rewards which might be recovered on account of said transactions," there is no difficulty in reaching the conclusion that there was an agreement between them for the sharing of the rewards. In ascribing meaning and effect to a special finding, it is to be read as a whole; the intendments are in its favor, rather than against it, and if, by considering one part in connection with other parts relative to the same matter, the finding can be said to be sufficient, it will be upheld. Cleveland, etc., R. Co. v. Closser (1890), 126 Ind. 348, 9 L. R. A. 754, 22 Am. St. 593, 26 N.E. 159; Kedey v. Petty (1899), 153 Ind. 179, 54 N.E. 798. We do not regard ourselves as at liberty to segregate the finding as to what was understood from the other findings, and when so read the intent of the court is in nowise uncertain.

Appellant's counsel further insist that since the answer charges that a contract was entered into between appellant Benjamin and Thompson, a finding that the contract was entered into between appellant and Benjamin is without the issues, and should therefore be disregarded. It is to be borne in mind, however, that the question is not presented as it would be if the parties asserting the contract were relying on it as a basis of a cause of action, but the fact as to the contract is...