Hindrey v. Williams , 9 Colo. 371 ( 1886 )

Elbert, J.

This is not the case of an entire contract “ where an entire promise is made on an entire consideration.” It consequently does not fall within the class of cases cited by counsel for the appellant, where, in case of loss by fire or otherwise before the work is completed, the owner loses his property and the laborer his work. It is a separable contract. No given number of tons were to be cut. No specific number of acres were to be mowed. Neither the work to be done nor the amount to'be paid was in gross. The plaintiff was to “cut, cure and stack hay upon the defendant’s ranch at $2.75 per ton, to be measured in thirty days.” Of the legal character of such .a contract there can be no difference of opinion. 1 Add. Cont. 392 et seq.; 2 Pars. Cont. 517 et seq. Under it the plaintiff cut, cured and stacked two hundred and ninety-six tons of hay. Two hundred and thirty-six tons were measured, and no controversy arises respecting them. Sixty tons were destroyed by fire, and the contention is as to where the loss must fall. Two points are made by the appellant: First, that all the hay was not stacked; second, that it was not measured. If all the hay cut was not stacked it would not preclude the plaintiff from recovering compensation for what was stacked; nor does it appear that he was allowed to recover for hay unstacked, either burned or unburned. If the fact that the sixty tons burned were not measured could in any case affect the right of the plaintiff to recover therefor, it can have no such effect in this case, in view of the evidence showing that the time in which, it should have been ‘measured had expired, and that the default was that of the defendant.

The loss must fall upon the party having the title to the property destroyed. The hay was cut, cured and stacked on the ranch of the defendant. The grass, before the cutting, was the property of the defendant. It was none the less so after it was cut, cured and stacked. The plaintiff had expended labor upon the grass at an agreed price per ton, — had made it into hay, — but he had no property in the product. The legal possession wTas' also that of the defendant, and neither delivery-nor acceptance is a feature in the case. If it can be said that the hay, after it was stacked, was to any extent in the cai’e and custody of the plaintiff, the evidence shows that he exercised reasonable diligence and prudence touching its safety, and the jury so found. The plaintiff was entitled to recover for the sixty tons destroyed by the fire.

If the work was not well done, the defendant could recoup his damages; and this he sought to do, under his pleadings, by evidence showing that the meadow was not well cut, and also that the hay was not well stacked. The evidence, however, upon these points, was conflicting, and we see no reason for disturbing the verdict of the jury. There was a fatal defect in the case made by the defendant in this behalf, in this: that, while the evi- ' dence tends to show that a portion of the hay was not well stacked, it does not show that the plaintiff paid any given sum for the restacking, or that it was worth any given amount. The jury were left to conjecture how much, if anything, the restacking was worth. In view of this, the objection that the plaintiff, Williams, was permitted to testify “all that was stacked was reported to me, from time to time, as perfectly sound and good,” becomes unimportant. If the testimony thus objected to can be taken (which is doubtful) to refer to the character of the stacking, and not to the condition of the hay when stacked, it nevertheless concerns an issue upon which, as we have seen, the defendant could not recover by reason of his failure to prove any damage.

The second assignment argued by counsel goes to the refusal of the court to poll the jury, before the verdict was recorded, upon the request of the defendant. Upon this point our statute is silent. It provides that the names of the jurors, upon their return into court, shall be called, “and they shall be asked by the court or the clerk whether they have agreed upon their verdict; and, if the foreman answers in the affirmative, they shall, on being required, declare the same;” and, further, that “when the verdict is given, and is not informal or insufficient, the clerk shall immediately record it in full in the minutes, and shall read it to the jury, and inquire of them whether it be their verdict. If any juror disagree, the jury shall be again sent out; but, if no disagreement be expressed, the verdict shall be complete, and the jury shall be discharged from the case.” Sections 177, 179, Amended Code.

Upon the right of a party to demand a poll of the jury before the verdict is recorded, the rulings differ in different states. In some of the states, in both civil and criminal cases, it is regarded as a right which may not be denied. Jackson v. Hawks, 2 Wend. 619; Fox v. Smith, 3 Cow. 23; James v. State, 55 Miss. 57; Johnson v. Howe, 2 Gilman, 342; Blackley v. Sheldon, 7 Johns. 32; Rigg v. Cook, 4 Gilman, 336; Labar v. Koplin, 4 N. Y. 550; Hubble v. Patterson, 1 Mo. 392; Stewart v. People, 23 Mich. 76. To some extent these decisions rest upon the proposition that opportunity should be given to the juror to correct a verdict which he has mistaken, or about which, upon further reflection, he has doubt; and it is to be observed that such opportunity is fully provided for by the provisions of the code above quoted. In other of the states it is regarded as. a matter resting entirely in the discretion of the court, but which the court will generally allow when there are any circumstances of suspicion attending the delivery of the verdict. Blum v. Pate, 20 Cal. 70; Martin v. Maverick, 1 McCord, 24; Landis v. Dayton, Wright (O.), 659; Rutland v. Hathorn, 36 Ga. 380; Fellows' Case, 5 Greenl. 333; Com. v. Roby, 12 Pick. 513; Proff. Jury Trial, 465. It is a matter of practice, and in civil cases we see no reason for holding that either party may demand that the jury he polled as a matter of right. We think that such a request may safely and properly be left as resting in the sound discretion of the court. If there should be any good reason for allowing either party, by a poll, to test the upanimity of the jury, the request should be granted.

The foregoing constitutes all the assignments argued by counsel. The judgment of the court below must be affirmed.

Affirmed.