Tourtelotte v. Brown

• Decision Date: 26 February 1892
• Citation: 29 P. 130,1 Colo.App. 408
• Parties: TOURTELOTTE v. BROWN.
• Court: Colorado Court of Appeals

29 P. 130

1 Colo.App. 408

TOURTELOTTE v. BROWN.

Court of Appeals of Colorado

February 26, 1892

Error to district court, Arapahoe county; GEORGE W. ALLEN, Judge.

Action on a note by Monroe L. Tourtelotte against Joseph M. Brown administrator of Francina Hawkins. There was a judgment for defendant, and plaintiff brings error. Reversed.

The other facts fully appear in the following statement by REED J.:

Defendant in error was sued in his representative capacity as administrator of the estate of Francina Hawkins, who died in the year 1889, leaving two daughters, Mrs. Maggie A. Hurd and Mrs. Pickard. This action was brought by plaintiff in error,--who resides, or did at the time of the transaction, in the state of Wisconsin,--as assignee of a promissory note, of which the following is a copy: "Denver, July 30, 1887. In consideration of the payment of three hundred dollars in cash, the receipt whereof is hereby acknowledged, and other good and valuable consideration, I promise to pay to Maggie A. Hurd the sum of eight thousand dollars, thirty months after date, with interest at eight per cent. per annum from date until paid interest payable every six months, or to be compounded. FRANCINA HAWKINS." On the back of said note are the following indorsements: "Pay to Steele &amp Malone, or order. MAGGIE A. HURD." "Pay to John F. Tourtelotte, or order. STEELE & MALONE." "Pay to M.L. Tourtelotte, or order. JNO. F. TOURTELOTTE." The assignment of the note from John F. Tourtelotte to his father, Monroe L. Tourtelotte, was made in the latter part of December, 1889. The latter was not present in Colorado; did not see the note, nor was it forwarded to him. On his written instruction it was delivered to his attorney, L.C. Rockwell, by John F. On the 31st of December, Mr. Rockwell caused a notice to be served upon defendant that on the 13th day of January, 1890, he would present the note for allowance as a claim against the estate, which was done. Various defenses or objections were urged against its validity which are not necessary to be considered in this connection, and the claim was rejected. An appeal was taken to the district court. The defenses set up and relied upon are: First. That the note was not made by Francina Hawkins. Second. That Maggie A. Hurd had never assigned and transferred the note in the usual and ordinary course of business; that neither Steele & Malone, John L. Toutelotte, nor plaintiff in error had paid a valuable consideration for the note; and that, if the note ever was executed by deceased, it was void for want of consideration. Third. That while in the possession of Steele & Malone, as indorsers, the note had been by them filed as a claim against the estate. A trial was had, resulting in the establishing the validity of the note. That an appeal was taken to the district court by the defendant in error. A jury was impaneled, a trial entered upon, some days occupied in the introduction of testimony, and at its close, and before the court had charged the jury as to the law, plaintiff, under section 166 of the Civil Code of 1887, abandoned the case, and the court entered a judgment of nonsuit and for costs; and that such adjudication barred the recovery of plaintiff in error. To this third defense a demurrer was filed and sustained; no exception taken, hence need not be further considered as a defense, but was necessary to be stated as a part of the history, as the facts will again be referred to in discussing the other defenses. Issues were made upon the remaining defenses. A trial was had to a jury, resulting in a general verdict for the defendant on the 17th day of October, 1890. The court also submitted to the jury the following question for a special finding: "Was the name of Francina Hawkins at the end of the note forged?" to which was answered: "Jury cannot agree. F.D. BAILEY, Foreman." Numerous errors are assigned. The first relied upon in argument arose upon the examination of the witness N.S. Hurd, husband of the payee of the note. He was called by the plaintiff. Testified that he knew Francina Hawkins. Had in life known her some 28 years. That she was his mother-in-law. That he was present, and saw her sign the note. After signing, she delivered it to him, and he delivered it to his wife. This was all. Upon cross-examination the court allowed counsel of defendant, over the objection of plaintiff, to examine the witness at great length in an attempt to establish the defenses relied upon, or some of them. The next error relied upon was to the court allowing the defendant to read in evidence to the jury the record of the court in the trial of Steele & Malone against the estate. The fifth, sixth, and seventh assignments were in the ruling of the court in admitting evidence on the part of the defendant of the transaction between Maggie A. Hurd, the payee, and Steele & Malone, to establish the fact that they were not bona fide purchasers and legal holders of the note. There were several instructions given by the court to which exceptions were taken, and upon which errors were assigned. The only one necessary to be set out is the following: (25) "You are further instructed that, in determining whether or not John F. Tourtelotte became a bona fide holder for value of the note in question, you should consider the testimony given by the witness concerning the transaction which constituted him the purchaser of said note, and all the evidence concerning said transaction; and in connection therewith you may also consider the circumstances of there having been previous litigation regarding said note, the general appearance of the note, any marks or writing upon the same, if any, that would naturally attract attention and invite inquiry with reference to the validity of said note, or as to whether or not there were any defenses urged against the same, for the purpose of determining in your minds whether or not the said John F. Tourtelotte, before or at the time of said purchase, had notice or knowledge that defense would be interposed to said note, and whether or not he did purchase the same in good faith. And in determining whether or not Monroe L. Tourtelotte, plaintiff, is a bona fide holder for value of said note, you may take into consideration the testimony of witnesses concerning the transaction between John F. Tourtelotte and himself, together with the circumstances surrounding the said transaction, for the purpose of ascertaining whether he received the same without knowledge or notice of such defenses interposed or to be interposed, and as to whether or not be in good faith purchased the same for value, and holds the same innocent of such defenses."

L.C. Rockwell and W.T. Hughes, for plaintiff in error.

T.M. Patterson and Brown, Putnam & Preston, for defendant in error.

REED, J., (after stating the facts.)

Whether the signature to the note was genuine or a forgery was put directly in issue by the pleadings,--was the controlling issue. If found a forgery, there was an end of plaintiff's case; if found genuine, other legitimate issues must of necessity be determined and found for the defendant to defeat a recovery. The direct question was propounded to the jury for a special finding. No finding was made, but a statement was returned that the jury could not agree, which was accepted by the court. A general verdict for the defendant was also returned, accepted, and a judgment entered upon it. We are clearly of the opinion that this was error. There was a mistrial. The failure to find upon that issue was equivalent to a failure to find and agree upon any verdict in the case. No intelligent or intelligible finding could be made upon subsequent issues in which that issue was not involved and conclusive. Of the right and power of the court to order a special finding upon any fact involved either upon his own motion or at the instance and suggestion of counsel, there can be no doubt. It is a power that has been exercised and unquestioned for ages under the common-law practice, (Co.Litt. 228; Dowman's Case, 9 Coke, 12; Rex v. Plummer, 12 Mod. 628; Bac.Abr. "Verdict," D;) and special provision for such a verdict is made by the Code, (Sess.Laws 1887, § 199:) "In any case in which the jury render a general verdict they may be required by the court to find specially upon any particular questions of fact, to be stated to them in writing. *** Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter." In Patterson v. U.S., 2 Wheat. 225, it is said: "The rule of law is precise upon this point. A verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and the end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue; and although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered upon the verdict." In Sutton v. Dana, 1 Metc. (Mass.) 383, it was said: "If the question submitted to the jury, and on which they were not agreed, had been as to any facts upon which the plaintiffs relied to maintain their action,...