Abraham v. Mack

278 P. 972, 273 P. 711, 130 Or. 32, 1929 Ore. LEXIS 165

• Court: Oregon Supreme Court
• Decided: September 20, 1928
• Status: Published

Opinions

PER CURIAM.

To accord with a concession made by plaintiff’s attorney as to the sum due the plaintiff, the court reduced the amount specified in the general verdict from $6,635.55 to $6,283.51. Notwithstanding that this reduction is in favor of defendant Mack, he objects most strenuously to the action of the court in amending the verdict. The court’s action was clearly within the compass of the law. It is well settled by the great weight of authority that a verdict may be amended with reference both to matters of form and of substance during the term, either by reference to the judge’s notes taken at the trial, or by other satisfactory evidence: 22 Ency. of Pl. & Pr. 974, 975; Miller v. Steele, 153 Fed. 714 (82 C. C. A. 572). To like effect, see Hodgkins v. Mead, 119 N. Y. 166 (23 N. E. 559), and Wands v. City of Schenectady, 171 App. Div. 94 (156 N. Y. Supp. 860), where the court said:

“Modern ideas of justice will not permit form to triumph over substance.”

In the Wands case, the court then quoted Section 723 of the Code of Civil Procedure of New York, which is, in substance, the same as Section 107, Or. L., which reads:

“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”

At the hearing on appeal, the defendant J. Gr. Mack presented his case chiefly, if not entirely, on the theory that the special findings made by the jury were inconsistent with, and controlled, the general verdict in favor of the plaintiff. We have set out all verdicts in our statement. As to the office of verdicts, both general and special, see Section 152, Or. L., where it is written:

“A general verdict is that by which the jury pronounce generally npon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.”

It is a general rule that a special verdict must state all the facts essential to a recovery, and that nothing can be supplied by intendment: 2 Thompson on Trials (1 ed.), § 2651. As to construction, a special verdict, like other instruments of writing, must be taken as a whole, and all material facts which it finds must be considered together: Forest Products Co. v. Dant & Russell, 117 Or. 637 (244 Pac. 531); 2 Thompson on Trials (1 ed.), §2654; 38 Cyc. 1930; 27 R. C. L., “Verdicts,” § 53. It is true that, when a special finding of fact taken as a whole shall be irreconcilably inconsistent with the general verdict, the special verdict shall control: Or. L., § 155; 27 R. C. L., “Verdicts,” §53; 38 Cyc. 1927; Rolfes v. Russel, 5 Or. 400; Loewenberg v. Rosenthal, 18 Or. 178 (22 Pac. 601).

In view of the general and special findings against the defendant in this case, it is difficult to understand how a judgment could have been entered in his favor. One of the special findings plainly shows that J. G. Mack became indebted to Maurice Abraham in the sum of $12,262.42, and a further finding shows that the total amount paid by Mack on his indebtedness to Abraham was $5,274.83. Special Finding No. 3 shows that Abraham had an agreement with Mack, entered into on November 19, 1917, for the payment of a specified sum of money arising out of their partnership contract, and Finding No. 13 is to the same effect. In answer to Question No. 9, the jury found, in effect, that Abraham sold Mack his interest in the merchandise and stock in trade belonging- to J. G. Mack & Company, a corporation.

There are two findings that are claimed to be inconsistent with the general verdict. The answer to Interrogatory No. 5 is to the effect that the account of Maurice Abraham was, on March 18, 1922, balanced, so that all of the debits and all of the credits equalled each other. And, when asked whether Abraham sold J. G. Mack any shares of the capital stock of the corporation, the jury answered “No.”

The record shows that, at the request of Mack, the corporation was kept alive until June, 1919, and Abraham continued to hold the capital stock he had agreed to transfer, and to act as a director of the corporation. Abraham testified that Mack desired that this be done because he believed that the preservation of the life of the corporation might be of advantage to him in settling its former business. But that the property of the corporation was transferred to J. Gr. and Mollie Mack, and that they went into possession thereof, and received the benefit of the same, there is no doubt. The rights of the parties to the corporate property were clearly expounded to the jury by the full, complete and voluminous instructions given by the trial court; and the jury understood the reason that Abraham retained possession of the shares of capital stock until the dissolution of the corporation.

Again, adverting to the value of special verdicts: From an examination of the answers to the several special interrogatories, it is apparent that all but two support the general verdict. In this connection, we quote the following pertinent excerpt from 27 B. C. L., “Verdicts,” Section 53:

“All the elements which go to make up a party’s right of recovery are found in his favor by a general verdict for him, and all reasonable presumptions will be entertained in favor of the verdict, while nothing will be presumed in aid of the special findings of fact. If the general verdict thus aided is not in irreconcilable conflict with the findings, it must stand. Therefore, in conceding to the jury the presumption of right judgment, to overthrow its general verdict, the special facts returned must be of such a nature as to exclude the possible existence of other controlling facts, provable under the issues, relating to the same subject. They must clearly exclude every conclusion that would harmonize with the general verdict, as it is only when the antagonism between the special findings and the general verdict on material questions is of such a nature as to be beyond the possibility of reconciliation under any supposable state of facts provable under the issues that the special findings control.”

To the same effect is 38 Cyc. 1927.

Furthermore, if, as contended by defendant Mack, two of the special findings are inconsistent and in conflict with the general verdict, then these special findings are inconsistent with the other special findings made by the jury. If this be true, the answers to the special interrogatories, being conflicting, neutralize each other and must be disregarded, and this would leave the general verdict standing: 27 R. C. L., “Verdicts,” § 52. Also note the following by the editors of R. C. L., which is supported by abundant authority:

“If the facts specially found, when construed together, are manifestly inconsistent with each other, and contradictory and uncertain in their meaning, they will not control the general verdict though inconsistent with it. In such a case the general verdict must stand and judgment must be rendered without regard to the special findings.” 27 R. C. L., “Verdicts,” p. 881.

Clearly, the trial court did not err in denying defendant’s motion for a judgment based upon the special verdicts in this case.

As to defendant’s demurrer to the third amended complaint: From a careful examination of the questions raised by the demurrer, we are satisfied that it was properly overruled.

In his opening statement to the jury, plaintiff’s counsel made a full statement of the facts that he expected to adduce in support of his client’s complaint. Defendant Mack assigns as error the court’s ruling-on a motion to dismiss the action based upon that statement. This opening statement is preserved in the record. It has been carefully read, and, in our opinion, discloses no apparent reason for the dismissal of the action.

During the course of the trial, the defendant offered a “supplemental and special plea,” embracing the defense that plaintiff’s cause of action, if any existed, had been barred by the statute of limitations. The bar of the statute of limitations must be interposed by the debtor. On this subject it is said in 1 Wood on Limitations (4 ed.), Section 7:

“Another general rule of great practical importance is, that the bar of the statute must be interposed by the diligence of the debtor and as early as possible, — usually, unless otherwise provided by statute, on the pleadings before the hearing, and that it will not be raised by the court unsolicited.” ,

The plea offered by defendant in this case, however, contained much matter that was not a defense to plaintiff’s cause of action; and it was properly rejected.

The defendant claims that he was prejudiced by reason of the fact that he was called to the witness-stand by the plaintiff, and, further, by an order for the examination of the books. We cannot agree with this contention. We do not think the fact that the plaintiff called the defendant to the witness-stand, or the fact that the court made an order for the examination of the books of J. Gr. Mack & Company with relation to the business transactions had by the partnership or the corporation designated as J. Gr. Mack & Company, should have prejudiced the defendant to such extent as to cause a reversal of this case.

Defendant Mack also complains that he is prejudiced by the introduction in evidence of exhibits ‘ ‘ F-l-2-3 ’' and “0-1-2-3.” There is no force in this contention. These exhibits were delivered to Abraham by defendant, and purported to contain a true statement of the accounts between them from 1917 to 1921.

"We have read this lengthy record with care and diligence. We have consumed much time and thoughtfully considered each of the numerous assignments of error. We do not undertake to discourse upon the value or lack of value of each assignment. Some are but repetitions of others. But we have tried to consider each with some degree of deliberation; From an analysis of the record, we are persuaded that, under and by virtue of our Constitution, this cause has been finally determined by the trial jury. Our fundamental law brooks no interference by the courts with a finding by jury that is supported by some competent and relevant evidence: Or. Const., Art. YU, § 3c. We do not weigh the evidence. Under the Constitution we do not attempt to determine upon the more worthy of two opposing witnesses; but, in obedience to the command of that instrument, we have carefully analyzed the record in this case to determine whether or not each essential allegation of the complaint is supported by some competent and relevant testimony. From such analysis, we are of opinion that the evidence adduced is amply sufficient to uphold the judgment.

This cause is affirmed. Affirmed.

Bean, J., not sitting. Rossman, J., did not participate in the hearing or consideration of this case. For appellant there was a brief over the name of Mr. W. C. Bristol, with an oral argument by Mr. Albert Abraham. For respondent Madge Abraham there was a brief over the name of Mr. Jas. E. McMenamin, with an oral argument by Mr. T. J. Gleeton. For respondent Mollie Made there was a brief over the name of Mr. Albert Abraham.

Former opinion adhered to on rehearing June 25, 1929.