Laflin v. Brown

Hubbard, J.

In this case no question was raised as to the execution of the mortgage deed and the assignment to the demandant ; but the questions submitted to the jury were, whether two of the notes given by the tenant Brown, and which were secured by the mortgage, had been paid by him ; and also whether two other notes, given by said Brown to Laflin & Field, and which were intended to be secured by the assignment of the mortgage, were given to Laflin & Field without consideration, or had been paid. And the jury were also instructed to ascertain the amount due to the demandant on the notes, if any thing was due.

The issue in the case was, whether the tenants had disseized the demandant; which issue depended on the fact whether the notes were void for want of consideration, or had been paid. If either of those facts was true, or if part of the notes were void for want of consideration, and the others had been paid, then the tenants were entitled to a verdict; otherwise, the de mandant would prevail.

But the court further instructed the jury, on the supposition that the parties intended to submit the question as to the amount due to the demandant, to find the same specifically, if they found for the demandant.

The Rev. Sts. c. 107, § 5, require that when the conditional judgment is to be entered, the court shall inquire and determine how much is due to the plaintiff on the mortgage, and shall then enter judgment, that if the defendant shall, within two months after the judgment, pay,” &c. Now here the court directed the jury to ascertain the amount while the question was pending whether any conditional judgment should be rendered or not. We think therefore the inquiry directed by the judge was premature and not warranted by any usage, nor contemplated by the framers of the statute. But if the parties had agreed to this course, we should not feel inclined to disturb the finding of the jury, as the consent of the parties would take away the error, if any, in the proceeding. And we see no reason, where the parties agree, why the court may not direct an issue to the jury, to ascertain the sum for which the conditional judgment shall be entered. But here we think there is not sufficient evidence of any such agreement; nor did the judge so deem it, as is apparent from his final ruling in the case.

The jury may have been misled by the direction given them that they were to ascertain the sum due ; and we cannot say that they would have agreed in their verdict, if they had supposed that such a finding by them did not as well settle the amount due, as the fact that the demandant was entitled to recover. This seems probable from the statement of the learned counsel, in his argument, that the evidence, if it went at all against the notes, went against all of them; if the evidence proved payment, it proved payment of all. Now the jury came 1 to no such conclusion ; for they found either a want of consideration for a part of the notes, or payment of a large part, and a small balance due; and we may well doubt, therefore, whether they would have agreed on a verdict, the result of which might have been, that the defendants would be charged with all the notes.

To reject the sum found by the jury, and yet retain the verdict for the demandant, might be to confirm a verdict which the jury did not find ; and to say that they must have found for the demandant, or they could not have found the $100, by no means follows ; for if they had not found that sum, they might not have agreed at all. We are of opinion, therefore, that this was not a mere superfluous finding, to be rejected by the court at their discretion, but that it entered into the merits of the verdict, and that it may work injustice to retain it. We are of opinion that the verdict, under the peculiar circumstances of the case, should be set aside, and a new trial granted ; as we do not think there is sufficient evidence of a previous agreement to bind the parties, and there is now no agreement to adopt the sum found by the jury as the correct amount for which the conditional judgment shall be rendered.

We do not doubt the authorities cited as to the right of the court to amend an informal verdict, and to make it conform to the issue between the parties, or to reject that as surplusage which they were not called upon to find, and which was not properly submitted to them. But in this case, they were directed to inquire into and ascertain the amount due ; and this was a material inquiry. We think it cannot be regarded as merely formal, or only surplusage.

Verdict set aside, and a new trial granted-