Waterbury v. Miller

• Decision Date: 26 September 1895
• Docket Number: 1,527
• Citation: 41 N.E. 383,13 Ind.App. 197
• Parties: WATERBURY ET AL. v. MILLER
• Court: Indiana Appellate Court

41 N.E. 383

13 Ind.App. 197

WATERBURY ET AL. v. MILLER

No. 1,527

Court of Appeals of Indiana

September 26, 1895

From the Warren Circuit Court.

Judgment affirmed.

C. M McCabe, for appellants.

L Nebeker and D. W. Simms, for appellee.

LOTZ J. Ross, J., concurs in the result.

OPINION

LOTZ, J.

The appellants, plaintiffs in the court below, in their complaint, alleged that they were the owners of, and entitled to, the immediate possession of two hundred bales of binder twine of which the appellee had, and unlawfully detained, the possession thereof. The appellee answered the complaint by the general denial. The cause was submitted to a jury which at the request of the parties and under the direction of the court returned a special verdict upon which judgment was pronounced in favor of appellee.

The errors assigned and discussed by appellants are: (1) the overruling of the motion for a new trial; (2) the overruling of the motion for a venire de novo, and (3) in rendering judgment in favor of appellee and against the appellants.

It appears from the undisputed evidence, and the jury so found, that the appellants were engaged in selling twine, with their place of business in the City of New York. Kirkwood, Miller & Co., a co-partnership, were wholesale and retail dealers in farm implements and binder twine, with their principal place of business at Peoria, Illinois. The appellee was a retail dealer in farm implements and binder twine at Hillsboro, Indiana. On December 5, 1892, Kirkwood, Miller & Co., purchased of the appellants one hundred tons of binder twine. On December 15, the appellants shipped from New York City two car loads of the twine sold, consigned to Kirkwood, Miller & Co., at Peoria, and which were received by the latter, one on the 24th, and one on the 28th of December. The twine in controversy was a part of this shipment. On December 30, 1892, Kirkwood, Miller & Co. made an assignment under the laws of the State of Illinois for the benefit of their creditors. On the 1st day of January, 1893, the twine in controversy was shipped from Peoria to Hillsboro, Indiana, consigned to the appellee and was received by him on January 6th of that year.

On the trial the appellants gave evidence which tended to prove that at the time Kirkwood, Miller & Co. contracted for the twine they were insolvent and that they concealed their insolvency, and that they did not intend to pay for the twine; that the appellee had knowledge of such fraudulent intent and was not a purchaser in good faith and for value. On the other hand the appellee gave evidence which tended to prove that Kirkwood, Miller & Co. sold the twine to one John R. Miller prior to the assignment and that John R. Miller sold it to appellee, and that he was a purchaser in good faith and for value, and without notice of the alleged fraud of Kirkwood, Miller & Co.

The appellants produced a witness who was a retail dealer in binding twine at Hillsboro, and who was acquainted with the wants of the trade at that place and propounded this question: "You may state to the jury what grades of twine are required there to meet the demands of the trade in that community, if you know?" An objection was sustained to this question, and this ruling was made one of the causes for a new trial. The appellants insist that the testimony sought to be elicited by this question would have tended to establish one of the badges of fraud, and that it was error to exclude it. Whenever the evidence offered does not obviously bear upon the questions at issue the court should be advised of its character that its relation to the case may be seen. There must be an offer in some form that the witness will, if permitted to answer the question, testify to a given fact. City of Evansville v. Thacker, 2 Ind.App. 370, 28 N.E. 559. The question itself does not disclose what kind or grades of twine the witness would have testified to, nor whether or not they were suitable for that market. Nor was there any offer as to what the witness would state in answer to the question. Smith v. Gorham, 119 Ind. 436. There is no available error in this action of the court.

In the verdict, as first returned, there was a finding that Kirkwood, Miller & Co. were insolvent at the time they purchased the twine, but there was no finding as to whether or not Kirkwood, Miller & Co. purchased the twine with the intention not to pay for the same; nor was there any finding as to whether or not appellee was a good-faith purchaser for value.

Thereupon the court on its own motion directed the jury to return to the jury room with instructions to find one way or the other upon the intent of Kirkwood, Miller & Co., when they bought the twine. Subsequently the jury reported that it was unable to agree as to the intent of Kirkwood, Miller & Co., whereupon the court over appellants' objection instructed and directed the jury to make a verdict so far as it could agree and to report the facts it could not agree upon. Subsequently and upon appellee's motion the jury was recalled and instructed by the court to find one way or the other upon the question as to whether or not at the time of the purchase of the twine and at the time of the payment therefor the appellee acted in good faith, and whether or not he paid the sum of $ 488.25 in cash, and whether or not at either of said times he had any knowledge of the fact that Kirkwood, Miller & Co. had purchased or procured the twine from the plaintiffs with intention not to pay therefor. The verdict as finally returned upon these questions states or finds as follows: "(4) that at the time of the sale and delivery of said twine as aforesaid, the said Kirkwood, Miller & Co. were insolvent. And we the jury, are unable to agree upon the question as to whether at the time of said sale and delivery of said twine, said Kirkwood, Miller & Co. intended not to pay for said twine, and whether they concealed their insolvency and their intention not to pay (if any)."

The verdict also finds that one Henry L. Miller was a member of the firm of Kirkwood, Miller & Co., and that one John R. Miller was the traveling salesman of Kirkwood, Miller & Co.; that Henry L. and John R. were brothers and that they and the defendant were cousins, and, continuing, it is found, "(10) That said Henry L. Miller made sale of said twine so shipped to the defendant to John R. Miller * * * and said John R. gave his note therefor, payable four months after date, to Kirkwood, Miller & Co., bearing date of December 30, 1892, but was not executed for several days thereafter, which note is now in the hands of the assignee, and said John R. was then, and still is, wholly insolvent.

"(11) That said John R. Miller made sale of said twine and took in payment therefor a note signed by John R. Miller, and bearing date of February 19, 1892, and payable to the defendant eight months after date, with interest at eight per cent., and by giving to said defendant a receipt for $ 488.25, to cover the balance of the price of said twine."

"(14) We find that at the time of the purchase of the twine in controversy and at the time of his payment therefor, defendant acted in good faith, and that he paid cash $ 488.25, and had not at either of said times any knowledge or notice of the fact, actual or alleged, that said Kirkwood, Miller & Co. had purchased or procured such twine from plaintiffs with the intention not to pay for such goods."

One of the causes for a new trial brings in review the action of the court in requiring the jury to find one way or the other upon the questions as to whether or not the appellee at the time he purchased the twine acted in good faith, and whether or not he paid $ 488.25 cash, and whether or not he had any notice of the fact, actual or alleged, that Kirkwood, Miller & Co. had purchased the twine with intention not to pay for the same. Appellants insist that this instruction coerced the jury into making an express and positive finding on points upon which the evidence may have been evenly balanced, as strong upon one side as upon the other, in which event the jury had the right and it was its duty to disagree.

There is a marked distinction between a general and special verdict. In the first the jury apply the law to the facts. It is the result of the application of the law as given by the court to the facts proved. While in a special verdict the jury find the facts and the court applies the law. Louisville, etc., R. W. Co. v. Balch, 105 Ind. 93, 4 N.E. 288.

It is the duty of the jury in returning a special verdict to find all the ultimate facts within the issues, and upon which evidence was given, one way or the other. And in the event it cannot agree upon any fact upon which evidence has been given, the verdict should state what fact or facts it cannot agree upon. The duty of the jury in finding the ultimate facts in a special verdict is identical with its duty in answering proper interrogatories in case of a general verdict. They must be answered one way or the other or a statement that it cannot come to an agreement. Rowell v. Klein, 44 Ind. 290; Maxwell v. Boyne, 36 Ind. 120; Cleveland, etc., R. W. Co. v. Asbury, 120 Ind. 289, 22 N.E. 140; Peters v. Lane, 55 Ind. 391.

It was the duty of the court to require the jury to find one way or the other, or report a disagreement. But the appellants insist that the instruction left the jury no option to disagree upon the questions embodied in it.

But it is a familiar rule that instructions must all be construed together. In a previous instruction the court said to the jury that if it could not agree upon any of the facts it might report a disagreement, and in the verdict as finally returned it did state a disagreement as to a certain fact. The fact...