Good v. Good , 9 Watts 567 ( 1840 )

The opinion of the court was delivered by

Gibson, C. J.

Jurors are sworn to try, not a particular issue, but all the issues, where there are more than one; and of this duty they can be relieved only by one of the parties, with the assent of the court to a motion to withdraw a count or a plea. Hence it is their business to pass on all the questions submitted to them, wholly or in part for the plaintiff or the defendant, reddendo singula singulis, 2 Tidd's Pr. 919, and where the issues are all to be found for the same party, it may be done in general terms, equally applicable to each of them; but where some of them are to be found for the one party, and some for the other, they must be disposed of in detail, to avoid the fatal necessity there would else be to patch up the record with parol evidence. Surely the unassisted records of our courts ought to be so intelligible as, at least, to show what was tried and what was not. A very moderate share of attention to the entry of a verdict would make it speak for itself, and the pains thus bestowed on it would find more than compensation in the security which is ever afforded by a recurrence to settled forms. Before judgment, a verdict may be moulded at pleasure, but only in the same cause, and not where it is before the court collaterally. Thus, where to an avowry for rent the plaintiff had pleaded non tenuit and riens in arriere, the first of which was found for him, it was held that, as the second had become immaterial, the proper course was to discharge the jury of it; but that if any verdict were entered on it, it must be for the party who pleaded it. Cossey v. Diggons, 2 Barn. & Ald. 546. In the case at present under consideration, it was not shown that the set-off had been withdrawn, and as there consequently was a verdict on it, the defendant must be taken to have had' all the benefit from it of which it was susceptible. Why should it be supposed to have been withdrawn, when the defendant’s right to recover on it could not be affected by any failure of the plaintiff’s cause of action? The difference betwixt the two cases is, that in ours, a particular finding on one of the pleas would not have superseded the necessity of a finding on the other—a difference which certainly makes it not the weaker one. On the contrary, the jury were bound by the words of the statute to determine the cross demand independently of the direct cause of action, with which it had no other connection than as a subject of defalcation, should that become necessary, in order to strike a balance for the successful party. In Lewis v. Culbertson, 11 Serg. & Rawle 59, it was deemed erroneous to reject evidence of set-off merely because the direct demand had not been maintained; and it was even doubted whether the plaintiff could have discontinued. In legal contemplation, then, a verdict in general terms for the defendant, embraces all his pleas. The British statute does not put the defendant in the attitude of an assailant, and the practice under it is consequently different, but less beneficial. Where the defendant makes default after plea or notice of set-off, it is the practice of the courts at Westminster to take a verdict for what the plaintiff has proved to be his demand, but subject to reduction by subsequent settlement; or to take a verdict for the smaller sum, with an endorsement on the postea to ground a stay of proceedings in any action afterwards brought for the same demand. Lang v. Chatham, 1 Camp. 252. In our own courts, an omission to give evidence of a set-off would be considered as a refraction of the notice; but where the defendant follows up his notice with evidence at the trial, he is concluded by the verdict, there and here. But the residue of a set-off not exhausted in extinguishing the opposite demand, not being recoverable, as with ns, by the same jury, is, by the British practice, reserved for recovery by future action or defalcation; here, it must be all disposed of at one operation. Being virtually a cross action for an entire demand, it must be prosecuted for the whole, if at all; and where there is nothing to show that it was withdrawn, the defendant is precluded from reasserting it, on the principle of Markham v. Middleton, 2 Stra. 1259, on which a finding of nominal damages on a judgment by default, would have concluded the plaintiff, had not the inquisition been set aside. The difference betwixt that case and this, is that even nominal damages were not assessed for the defendant on his plea and notice. But as the jury certainly passed on something, it is as reasonable to suppose they decided the cause on the one issue as on the other, and that they sustained the bond in the first instance, holding it to be satisfied by the set-off, and no more. As to what was properly cross demand, therefore, the defendant was concluded; but we must be careful to distinguish it from what was properly failure of consideration. As a ground of demand, the one is legal and independent of the plaintiff’s cause of action: the other is equitable, inherent in all the securities founded on the same consideration, and therefore applicable to successive actions on any of them, till the defendant is compensated by defalcation to the extent of the loss. In this instance, the plaintiff claimed the promise of his erbschaft, as the Germans have it, compensation for personal services, and damages for a breach of a covenant th^t a particular estate of dower in the land had been released; these were subjects of cross demand, and they were settled in the previous action, at what they were worth. But for failure of consideration, the defendant is entitled, on the whole, to a deduction equal to the average value of the acres lost, determined by the price originally stipulated, if the sale was fair; or, according to King v. Pyle, 8 Serg. & Rawle, to its actual value in relation to the residue, if the sale was foul; and he is entitled to an allowance, in this action, for any part of it which has not been allowed him before. But it follows not that a false recital, which is often the work of the scrivener, is evidence of actual fraud, without which the stipulated price is the standard value of the compensation. If such a recital amounts to any thing, it is a covenant; and it will not be pretended that a broken covenant is evidence of fraud in the concoction of the bargain. The vendor takes the risk of the fact, and the vendee relies on his security; but neither is misled, and if the legal conclusion were otherwise, it would confound all •distinction on the subject, for the price paid could never be the measure of damages for the breach of a covenant of title. On the evidence given, the questions of set-off and fraud ought not to have been submitted.

Judgment reversed, and a venire facias de novo awarded.