McMillan v. McKee

2 Indian Terr. 529

• Court: Court Of Appeals Of Indian Territory
• Decided: October 26, 1901
• Status: Published

Opinion

Springer, C. J.

Appellants submit their case upon the assignment of one error, as follows: “The court erred in overruling the motion of the defendants below for judgment in favor of the defendant McMillan upon the verdict for the sum of $248, and in overruling the defendants’ motion for a néw trial. ” The appellants, in their brief, insist that the jury found: First, that the defendants, at the time of the trial, were indebted to the plaintiff in the sum of $648.81, being the amount of the notes sued on; and, second, that they found that the plaintiff was indebted to the defendant in the sum of $498.81, being the difference between the value of the stallion as warranted and as the evidence showed him to be; and that, thirdly, the jury found for the defendant McMillan damages for feeding and keeping the stallion, the sum of $398.81, — the two items aggregating the sum of $897.62. Appellants insist further that the recital in the verdict, “Due plaintiff, McKee, $100, '* is inconsistent with the special finding of the jury, and must be disregarded as surplusage. Their contention, therefore, is that it was error for the court to refuse to render judgment for defendant and against the plaintiff for the sum of $248,' and that it was error to render judgment in favor of plaintiff and against both of the defendants for the sum of $100 and costs of suit. Counsel for appellants then state as follows: ‘ ‘This being an equity suit, the trial judge was not necessarily bound by the verdict of the jury.” The counsel for appellee concede this to be the law governing the trial judge in equity cases. The verdict of the jury was merely advisory, and the court •was at liberty to disregard it in whole or in part. However, any error that the judge may commit in revising the verdict would be subject to review on appeal, if exceptions were were properly and timely taken, and if all the evidence before the jury upon which the trial judge acted in revising the verdict was preserved in a bill of exceptions. In the case at bar the record does not preserve the evidence in the case. But counsel for appellants rely upon the form of the verdict to sustain their contention that the defendant was entitled to a judgment on the verdict for $248. This contention is untenable. Under the instructions of the court to the jury they were informed “that the measure of damages for the breach of warranty in the sale of this horse, should they find that there was a breach, is the difference between the value that the horse had at the time of the sale if he had been such horse as stated in the warranty, and the actual value that the horse had as may appear to you from the evidence.” It is evident from the text of the verdict that the jury found that there was a partial failure of the warranty. Under that finding the amount agreed to be paid in the notes which were given ceased to be a factor in determining the amount which the plaintiff was entitled to recover. If there was a partial failure of warranty, the amount expressed in the note was not the amount which was to be paid, but the amount to be paid was the actual value which the horse had at the time of the sale, as appeared to the jury from the evidence. This actual value at the time of the sale, as appeared to them from the evidence, was evidently expressed by this verdict as $498.81. That was the sum which the jury evidently found was the value of the horse as appeared to them from the evidence. The jury further found the damages sustained by the defendant in feeding and keeping the stallion to be $398.81. Deducting the latter from the former sum, leaves the sum of $100, which the jury found to be due to the plaintiff, McKee. This is the con - struction which the court placed upon this verdict. The evidence, which is not preserved in the record, we must assume, was such as to support this theory of the court if it had been preserved in a bill of exceptions and printed in the record. In the absence of the evidence on which the court construed this verdict, or even reformed it, if the verdict, upon the face of it, will not bear the construction which the court gave it, this court will assume that such evidence, if produced, would support either theory upon which the court may have acted. If the judge reformed the verdict of the jury, it was his province to do so. If he construed it as stated, he construed it in the light of the evidence. In either event, there is no error in his action. The judgment of the court below is therefore affirmed. .

Clayton and Thomas, JJ., concur.