Shaw v. Barnhart

• Decision Date: 30 November 1861
• Citation: 17 Ind. 183
• Parties: Shaw and Another, Administrators of Slocum v. Barnhart
• Court: Indiana Supreme Court

17 Ind. 183

Shaw and Another, Administrators of Slocum v. Barnhart

Supreme Court of Indiana

November 30, 1861

APPEAL from the Wabash Common Pleas.

The judgment is affirmed, with 5 per cent. damages and costs.

Orris Blake and L. H. Goodwin, for the appellants.

J. D Conner, for the appellee.

OPINION

Worden J.

Barnhart sued George Slocum upon a promissory note made by the latter to the former, and also upon an agreement for the leasing of some land. Issue; trial by jury; verdict and judgment for the plaintiff.

Slocum having deceased, since the rendition of the judgment, his administrators appeal, and assign eighteen errors. The first and second of which relate to the ruling of the Court in sustaining demurrers to the first and second paragraphs of the defendant's answer. We have not examined these paragraphs critically, with a view to their sufficiency, because there were other paragraphs of the answer, on which issues of fact were formed, under which the matters alleged in the first and second could have been proven, and under which the evidence was received. Hence although the first and second paragraphs might be good, the defendant suffered no injury by the ruling. Ind. Dig., § 253, p. 658.

The third and fourth errors relate to the ruling of the Court in giving the plaintiff the opening and closing of the case, in the introduction of the evidence, and the argument of the cause to the jury. There were two paragraphs in the complaint. To the first the answers were affirmative; but to the second the general denial was pleaded, which threw the burden of proof upon the plaintiff, and entitled him to open and close the evidence. The plaintiff introduced some proof tending to sustain his second paragraph, and, hence, he was entitled to open and close the argument. Vide Zehner v. Kepler, 16 Ind. 290.

The fifth and sixth errors are, that the Court erred in overruling motions for a new trial, and in arrest of judgment. All the residue of the errors assigned, relate to the ruling of the Court in giving and refusing instructions.

The jury found for the plaintiff on the first paragraph of his complaint, and assessed as damages the amount due upon the note therein described; but did not find, in terms, upon the other paragraph. This was one of the grounds of the motion for a new trial, and the only ground of the motion in arrest.

Regularly, the verdict should respond to all the issues which the jury are sworn to try. But we think no error was committed in this respect of which the defendant could complain. The plaintiff recovered nothing upon his second paragraph, and if the defendant was injured by the fact that the jury did not specially find upon it, it must be because the verdict and judgment will be no bar to another suit brought for the same matter. We are inclined to think, though this point we do not decide, that a verdict in favor of a plaintiff upon one paragraph of his complaint, without noticing the others, should be construed as equivalent to a finding against him on the others. But however this may be, it seems clear enough that the plaintiff, having offered evidence in support of his second paragraph, and having taken judgment on the verdict as it stood, has precluded himself from bringing another action for the matter embraced in his second paragraph, as effectually as if there had been an express finding against him on that paragraph.

The case is entirely different from those where there are several issues, any one of which being found for the defendant, would defeat the plaintiff's right to recover at all. In such cases, all the issues must be found for the plaintiff, or he can not recover. One good defense, going to the whole cause of action, is as good as a score; and if any one of such defenses remain...