Schaffner v. Kober

• Decision Date: 02 October 1891
• Docket Number: 134
• Citation: 28 N.E. 871,2 Ind.App. 409
• Parties: SCHAFFNER v. KOBER
• Court: Indiana Appellate Court

28 N.E. 871

2 Ind.App. 409

SCHAFFNER v. KOBER

No. 134

Court of Appeals of Indiana

October 2, 1891

From the Marion Superior Court.

Judgment reversed, with costs, and cause remanded for a new trial.

R Hill, for appellant.

W. W Herod, W. P. Herod and W. W. Pringle, for appellee.

OPINION

BLACK, J.

This was an action on a promissory note for five hundred dollars governed by the law merchant, made by the appellee and indorsed by the payee to the appellant.

The appellee answered in three paragraphs. In the first it was alleged that the note was given without any consideration, and was assigned to the appellant after its maturity.

In the second paragraph it was alleged that the consideration for the note had wholly failed. The facts alleged as constituting a failure of consideration, briefly stated, were, that the payee was an attorney at law; that the consideration for the note was his promise and agreement to appear and defend the appellee on a charge pending against him by indictment in the Marion Criminal Court; that after the execution of the note, the payee wholly failed, neglected and refused to appear in court and conduct appellee's defence to said charge, or to perform any duty or service for the appellee in and about his defence; and that the note was assigned to the appellant after its maturity.

The third paragraph was substantially the same as the second, with the addition of certain allegations to the effect that the execution of the note was obtained by fraudulent practices of the payee, and that his services for the appellee were of no value.

The appellant replied by denial. There was a general verdict for the appellant for fifty dollars; and the jury returned answers to interrogatories submitted at the request of the appellant.

The appellant's motion for judgment on the answers of the jury to the interrogatories for the full amount of the note sued on was overruled, as was also his motion for a new trial.

On appeal to the general term of the court below the rulings on these motions were assigned as errors.

In the answers to interrogatories the jury found that the appellee was indicted in the Marion Criminal Court for grand larceny; that before he spoke to said attorney to defend him on the indictment, the appellee had entered into an arrangement to plead guilty to said indictment, and to take a punishment thereon of three years in the penitentiary; that the note sued on was executed in consideration of the undertaking of the payee to defend the appellee upon said indictment and to prevent him from being punished by imprisonment in the penitentiary for the offence charged therein; that this contract was fairly and honestly entered into between the payee and the appellee; that there was no fraud practiced by the payee upon the appellee whereby the latter was induced to execute the note; and that the value of the services of the payee in defence of the indictment against the appellee, as shown by the evidence, was the sum of fifty dollars.

It is not necessary, as seems to be supposed by counsel for the appellee, that the action of the court in overruling the motion for judgment on the answers of the jury to interrogatories should be shown by bill of exceptions. Salander v. Lockwood, 66 Ind. 285; Terre Haute, etc., R. R. Co. v. Clark, 73 Ind. 168; Frank v. Grimes, 105 Ind. 346, 4 N.E. 414.

The general verdict must stand, unless the special finding of facts, taken as a whole, is so inconsistent with the general verdict that both it and the special finding can not stand together, the antagonism being apparent upon the face of the record, without looking to the evidence. Upon a motion for judgment on such special findings, every reasonable presumption will be indulged in favor of the general verdict, and if it be possible to reconcile it with the special findings upon any supposable state of facts provable under the issues, the motion will not be sustained. Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627; Cincinnati, etc., R. R. Co. v. Clifford, 113 Ind. 460, 15 N.E. 524; Higgins v. Kendall, 73 Ind. 522; Davis v. Reamer, 105 Ind. 318, 4 N.E. 857; Cox v. Ratcliffe, 105 Ind. 374, 5 N.E. 5; Porter v. Waltz, 108 Ind. 40, 8 N.E. 705.

If the answers to interrogatories, taken together, show that the party in whose favor the general verdict is rendered is entitled to a larger sum than that awarded him in the general verdict, the special findings will control. Froman v. Rous, 83 Ind. 94; Brickley v. Weghorn, 71 Ind. 497.

While the court, upon a motion for judgment on the findings of the jury in answer to interrogatories, will not look to the evidence, it will consider the pleadings and will regard the issues. Higgins v. Kendall, supra; Louthain v. Miller, 85 Ind. 161; City of Indianapolis v. Kollman, 79 Ind. 504.

One paragraph of answer, as we have seen, alleged that the note was given without any consideration, and was assigned after maturity. The finding showing the nature of the consideration was relevant to the issue formed on this paragraph. It was specially found by the jury that the consideration was the undertaking of the payee to defend the maker upon the indictment, and to prevent him from being punished by imprisonment in the penitentiary for the offence charged therein. It does not appear by the special findings that he was saved from such punishment. There was no answer that the consideration had failed in this respect, and there was no burden on the appellant to prove a consideration, which the note imported, or to prove that the consideration had not failed.

The defence of fraudulent procurement of the execution of the note was negatived by the special findings.

One paragraph of answer stated as the consideration the promise and agreement of the payee to appear and defend the appellee on the charge pending against him by indictment, and alleged the failure, neglect and refusal of the payee to perform such service, and that the note was assigned after maturity.

In the answers of the jury it was found that the value of the services of the payee in defence of the indictment was fifty dollars. This was not incompatible with proof, admissible under the pleadings, that the attorney failed in an important part of his duty under his contract through his own fault alone.

The general verdict being for the appellant, it was sought by the motion for judgment to control it by the special findings, only by way of increasing the amount of recovery.

No presumption is to be indulged in aid of the special findings; and the existence of any state of facts provable under the issues may be supposed for the purpose of preventing such inconsistency as would allow the special findings to control, in any respect, the general verdict. If the state of facts which may be thus supposed would be sufficient to reduce the amount otherwise recoverable on the note, it could not be error to overrule the motion for judgment for the full amount of the note...