SECTION II. VERDICT.

BUNN v. HOYT.

SUPREME COURT OF NEW YORK, 1808.

3 Johns. (N. Y.) 255. 83a

Riker moved to set aside the verdict in this cause for irregularity.

This was an action of assumpsit against the defendant, as the agent of Graham in the sale of a ship. The cause was tried at the last sittings in New York, before Mr. Chief Justice Kent.

After the charge of the judge, the jury retired from the bar to consider their verdict, and after being together several hours, they separated, and the next morning delivered to the court a verdict sealed up for the plaintiff. When the verdict was read, the counsel for the defendant requested that the verdict might be taken by the polls, and one of the jurors, on being asked whether he agreed to the verdict as read, said that he could not agree to it; that he had signed the sealed verdict as a matter of accommodation, but he thought it unconscientious, and could not assent to it. The judge then directed the jury to retire and reconsider their verdict, to which the defendant's counsel objected; but the jury were sent out and after being absent for some time, they gave information to the court that they could not agree on their verdict, upon which they were informed by the direction of the judge, that they must agree. After having been out several hours, they returned with a verdict for the plaintiff for the same damages as before.

To show that the verdict was irregularly taken the counsel cited Trials per pais, 249, 310; 2 Salk. 645; 2 Tidd 817.

Hopkins and J. Radcliff, contra, were stopped by the court.

PER CURIAM: There has been no irregularity shown to render it proper to set aside the verdict.

Rule refused.84

A second point in the case upon newly discovered evidence is omitted. "The practice of allowing the jury to seal a verdict and then separate is very general, having superseded the privy verdict of the common law described by Blackstone, 3 Bl. Comm. 377; Dornick v. Reichenback, 10 Serg. & R. (Pa.) 84 (1823); High v. Johnson, 28 Wis. 72 (1871); Chicago v. Langlass, 66 Ill. 361 (1872), and in the absence of a statutory prohibition, the practice is permissible in civil cases, in the discretion of the judge without regard to the consent of the parties. Bunker Hill, &c., Min. Co. v. Schmeling, 79 Fed. 263, 24 C. C. A. 564 (1897); Bunker Hill, &c., Min. Co. v. Oberder, 79 Fed. 726 (1897); Green v. Bliss, 12 How. Pr. (N. Y.) 428 (1856); Anonymous, 63 Maine 590 (1874); Kramer v. Kister, 187 Pa. 227, 40 Atl. 1008, 44 L. R. A. 432 (1898). The only true verdict is that which the jury announce orally in open court and which is received and recorded. Saunders v. Freeman, Plowd. (1562); Lawrence v. Stearns, 28 Mass. 501 (1831); Withee v. Rowe, 45 Maine 571 (1858); Crotty v. Wyatt, 3 Ill. App. 388 (1879); Sutliff v. Gilbert, 8 Ohio 405 (1838); Root v. Sherwood, 6 Johns. 68, 5 Am. Dec. 191 (1810); Scott v. Scott, 110 Pa. 387, 2 Atl. 531 1885; Ostrander v. Lansing,

111 Mich. 693, 70 N. W. 332 (1897); Roth v. East Connellsville Coke Co., 242 Pa. 23, 88 Atl. 781 (1913); Nelson v. Wood, 210 Fed. 18 (1913). The parties may, however, consent that the verdict be received by the clerk in the absence of the judge. Dubuc v. Lazell, 182 N. Y. 482 (1905); Ferrell v. Hales, 119 N. Car. 199 (1896); Owens v. Southern R. Co., 123 N. Car. 183, 31 S. E. 383, 68 Am. St. 821 (1898); Bedal v. Spurr, 33 Minn. 207, 22 N. W. 390 (1885); Rigg v. Bias, 44 Kans. 148, 24 Pac. 56 (1890); Union Pac. R. Co. v. Connolly, 77 Nebr. 254 (1906). In civil cases there is a conflict of opinion as to whether a party may demand a poll of the jury. Some jurisdictions have declared this right absolute. Hubble v. Patterson, I Mo. 392 (1823); Fox v. Smith, 3 Cow. (N. Y.) 23 (1824); Jackson v. Hawks, 2 Wend. (N. Y.) 620 (1829); Johnson v. Howe, 7 Ill. 342 (1845); Labar v. Koplin, 4 N. Y. 547 (1851); Hancock v. Winans, 20 Tex. 320 (1857); White v. Archbald School Dist., 2 Pa. County Ct. 1 (1886); Smith v. Paul, 133 N. Car. 66, 45 S. E. 348 (1903). Elsewhere a poll is discretionary with the judge. Ropps v. Barker, 21 Mass. 239 (1826); School Dist. v. Bragdon, 23 N. H. 507 (1851); Rutland v. Hawthorn, 36 Ga. 380 (1867); Whitner v. Hamlin, 12 Fla. 18 (1867); Dunlop v. Munroe, I Cr. (C. C.) 536, Fed. Cas. No. 4167 (1809), and see Humphries y. District of Columbia, 174 U. S. 190, 43 L. ed. 944, 19 Sup. Ct. 637 (1898). In Iowa the code dispenses with a poll in the case of a sealed verdict. Dunbauld v. Thompson, 109 Iowa 199, 80 N. W. 324 (1899).

A verdict defective in form merely may be recommitted to the jury for correction whether sealed or not. Tyrrell v. Lockhart, 3 Blackf. (Ind.) 136 (1832); Wolfran v. Eyster, 7 Watts. (Pa.) 38 (1838); Sutliff v. Gilbert, 8 Ohio 405 (1838); Pritchard v. Hennessey, I Gray (Mass.) 294 (1854); Clark v. Sidway, 142 U. S. 682, 35 L. ed. 1157, 12 Sup. Ct. 327 (1891); Clark v. Lude, 63 Hun 363, 18 N. Y. S. 271, 43 N. Y. St. 607 (1892); Childs v. Carpenter, 87 Maine 114, 32 Atl. 780 (1895); Lyon v. Brown, 34 App. Div. 323, 54 N. Y. S. 315 (1898); Saxon v. Foster, 69 Ark. 626, 65 S. W. 425 (1901): Wright v. Wright, 114 Iowa 748, 87 N. W. 709, 55 L. R. A. 261 (1910); Hary v. Speer, 120 Mo. App. 566, 97 S. W. 228 (1906); Blake v. Husnberger, 46 Pa. Super. Ct. 32 (1911); Beecher v. Newcomer, 46 Pa. Super. Ct. 44 (1911); Bronstein v. American Ice Co., 119 Md. 132, 86 Atl. 131 (1912).

Where the jury have separated after agreeing to a sealed verdict, and on coming into court one of the jurors dissents, it is generally held, as in the principal case, that the judge may send the jury out to deliberate further. Blackley v. Sheldon, 7 Johns. (N. Y.) 32 (1810); Douglass v. Tousey, 2 Wend. (N. Y.) 352, 20 Am. Dec. 616 (1829); Perry v. Mays, 2 Bailey (S. Car.) 354 (1831); Warner v. New York Cent. R. Co., 52 N. Y. 437, II Am. Rep. 724 (1873); Campbell v. Murray, 62 Ga. 86 (1878); Devereux v. Champion Cotton Press Co., 14 S. Car. 396 (1880); Weeks v. Hart, 24 Hun (N. Y.) 181 (1881); Morgan v. Bell, 41 Kans. 345 (1889); Lagrone v. Timmerman, 46 S. Car. 372, 24 S. E. 290 (1895); Frick v. Reynolds, 6 Okla. 638, 52 Pac. 391 (1898); Rice Fisheries Co. v. Pacific Realty Co., 35 Wash. 535, 77 Pac. 839 (1904); Coughlin v. Weeks, 75 Wash. 568, 135 Pac. 649 (1913). Contra: Kramer v. Kister, 187 Pa. 227, 40 Atl. 1008, 44 L. R. A. 432 (1898), where it was said the proceeding must be treated as a mistrial and the jury discharged. In the words of Mitchell, J.: "When a juror dissents from a sealed verdict there is a necessary choice of evils, a mistrial or a verdict finally delivered under circumstances that justly subject it to suspicion of coercion or improper influence. We are of opinion that the former is the lesser evil. If one juror can dissent so may all change their view and render a new verdict exactly opposite to the cne they first agreed upon and sealed." If after the separation of the jury the plaintiff's attorney has a conversation with one or more of the jury, following which the jurors dissent from the sealed verdict and afterwards find a larger verdict, the second verdict will be set aside. Martin v. Morelock, 32 Ill. 485 (1863).

DIEHL v. EVANS.

SUPREME COURT OF PENNSYLVANIA, 1815.

1 Serg. & R. (Pa.) 367

The jury empaneled in this cause, which was an action for freight and demurrage, found a verdict in these words: "We find for the plaintiff, and are of opinion, that the plaintiff has already received out of property of the defendant, payment in full for the amount of freight to which he is entitled."

A motion for a new trial was now made by Ingersoll, on behalf of the plaintiff, on the ground that the finding was too uncertain to admit of a judgment being entered upon it. He observed that the jury had found for the plaintiff, but had assessed no damages. They had expressed an opinion that the freight had been received by the plaintiff out of the defendant' property, but had said nothing about demurrage; and this opinion relates to a set-off, of which no notice was given by the defendant's plea. If the jury meant to find for the defendant, they ought to have said so. He cited I Ld. Raym. 324; 7 Bac. Ab. 37, Verd. R.

Levy, for the defendant, said that if the court could collect the meaning of the jury from the whole verdict it was sufficient. I Dall. 462; Hob. 54; 1 Salk. 328; 2 Burr. 700; Cro. Eliz. 854, pl. 16.

In this case, the jury having found (for an opinion of a jury is a finding) that the plaintiff had received payment in full for the freight, out of the property of the defendant, their assessing no damages is a plain indication that they meant it is a finding for the defendant.

TILGHMAN, C. J.: The plaintiff's declaration sets forth a claim. for freight and demurrage. The jury, after being long out, and having declared to the court that they found great difficulty in coming to an agreement, at length brought in a verdict as follows: "We find for the plaintiff, and are of opinion that the plaintiff has already received, out of the property of the defendant, payment in full for the amount of freight to which he is entitled." This is certainly an extraordinary verdict and not easily understood. I agree that if there be substance, it is sufficient; the court will mould it into form. But what did the jury intend? Did they mean to find for the plaintiff generally, both as to freight and demurrage? If so, the verdict is imperfect, because they have found no particular sum, nor have they said that the demurrage has been paid.85 Perhaps they intended

85A verdict must be responsive to all the issues made by the pleadings. Miller v. Trets, 1 Ld. Raym. 324 (1697); Smith v. Raymond, I Day (Conn.) 189 (1804); Middleton v. Quigley, 12 N. J. L. 352 (1831); Crouch v. Martin, 3 Blackf. (Ind.) 256 (1833); McCoy v. Rives, 9 Miss. 592 (1844); Moore v. Moore, 67 Tex. 293, 3 S. W. 284 (1887); Hackett v. Jones, 34 Ill. App. 562 (1889); Phoenix I. Co. v. Maryland G. M. Co., 146 Fed. 501 (1906); Spinapont v. Vogel Co., 81 Misc. (N. Y.) 127, 142 N. Y. S. 177 (1913); Waco Cement Stone Works v. Smith (Tex. Civ. App.), 162 S. W. 1158 (1913); Smith v. Smith, 141 Ga. 629, 81 S. E. 895 (1914).

Where a money judgment is sought, a verdict that fails to find a sum with sufficient definiteness to permit the entry of judgment is bad. Miller v.

to find for the defendant as to the demurrage, and I think it most probable they did. But then why not find generally for the defendant? For if the plaintiff was entitled to freight only, and had received full payment for that freight, the verdict ought to have been for the defendant. There seems then to be some mystery in the business. The jury could not agree, and appear to have come to a compromise among themselves. When I consider this, and perceive that they have only given their opinion that the plaintiff has received payment for his freight, I am not satisfied that they unanimously intended to find absolutely for the defendant. An opinion is not a legal verdict. The finding must be positive. With all the inclination, therefore, which I feel to give effect to a verdict, after a full trial on the merits, I can not say that the intention of the jury is expressed with sufficient certainty to authorize the court to enter judgment for the defendant. I am, therefore, of opinion that there should be a new trial.

86

YEATES, J. It is the duty of a court to mould a verdict into legal form, where the intention of the jury is plain and clear. But this can not be done in the present instance.

The finding here is not only imperfect, but contradictory. The jury have found for the plaintiffs, but have ascertained no sum in damages. They declare merely their opinion that the plaintiffs have received the amount of the freight, but are wholly silent as to the demurrage, which was one of the grounds of action. It is absolutely impossible to render judgment on this verdict. It must, therefore, be set aside and a new trial awarded.

Brackenridge, J., concurred.

New trial awarded.87

Hower, 2 Rawle (Pa.) 53 (1829); Neville v. Northcutt, 7 Coldw. (Tenn.) 294 (1869); Watson v. Damon, 54 Cal. 278 (1880). But where the amount is not in issue a verdict in favor of a party without assessing damages has been held sufficient. Bell v. Old, 88 Ark. 99, 113 S. W. 1023 (1908); Hall v. Bank of Emporia, 133 Ill. 234 (1890).

Heyward v. Bennett, 3 Brev. (S. Car.) 113 (1813); Jewett v. Davis, 6 N. H. 518 (1834); Knox v. Breed, 12 Ill. 61 (1850); Day v. Webb, 28 Conn. 140 (1859); Bruck v. Mausbury, 102 Pa. St. 35 (1882); Conrey v. Metropolitan St. R. Co., 73 App. Div. 518, 77 N. Y. S. 222 (1902); Gray's Harbor Boom Co. v. Lytle Logging, &c., Co., 38 Wash. 88, 80 Pac. 271 (1905); Stevens v. Walker, 99 Maine 43, 58 Atl. 53 (1904); Nicholson v. Maine Cent. R. Co., 100 Maine 342, 61 Atl. 834 (1905), accord.

In Patterson v. United States, 2 Wheaton 221, 4 L. ed. 224 (1817), it is said, per Washington, J.: "A verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and the end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue; and, although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet, if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confirmed to a part only of the matter in issue, no judgment can be rendered upon the verdict. It is true that if the jury find the issue, and something more, the latter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in the verdict are substantially variant from those which are in issue." Where the issue is correctly found surplusage may be disregarded by the court. Cavene v. Michael, 8 Serg. & R. (Pa.) 441′ (1822); Fisher V.

PECK v. SNYDER.

SUPREME COURT OF MICHIGAN, 1864.

13 Mich. 21.

Assumpsit to recover damages for not building a house and barn according to contract. After the charge to the jury, defendant's counsel asked the court to direct the jury to find specially and return such finding with their verdict upon these two questions: Ist. Whether when plaintiff paid defendant the balance of the contract price and took possession he had not full knowledge that the house and barn were not constructed according to contract. 2nd. Whether the defendant was guilty of any fraud by concealing the facts_respecting said building. The court refused so to direct the jury. Defendant excepted.88

MARTIN, C. J.: I can see but one exception taken below, to which our attention can be directed, and that is to the refusal of the judge to direct the jury to find specially upon certain questions, in case they found a general verdict. This is a novel request. A jury may find a general or a special verdict, according to the exigencies of the case; but a judge can not direct or compel them to do either and more particularly, not to give reasons for a general finding.89 Affirmed.

Kean, I Watts (Pa.) 259 (1832); Neely v. Sensenig, 150 Pa. St. 520, 24 Atl. 748 (1892).

A verdict is not final until recorded. Rottmund v. Pennsylvania R. Co., 225 Pa. 410, 74 Atl. 341 (1910), hence the jury may amend their verdict so as to put it in form before they separate. Warner v. Railroad Co., 52 N. Y. 437, II Am. Rep. 724 (1873); Griffin v. Larned, 111 Ill. 432 (1884); Pepper v. Philadelphia, 114 Pa. St. 96, 6 Atl. 899 (1886). And the court may recommit the verdict to the jury to be reformed. Crocker v. Hoffman, 48 Ind. 207 (1874); Produce Exchange v. Bieberbach, 176 Mass. 577, 58 N. E. 162 (1900); Black v. Griggs, 74 Conn. 582, 51 Atl. 523 (1902); Cohen v. Traction Co., 141 Iowa 469, 119 N. W. 964 (1909); Bronstein v. American Ice Co., 119 Md. 132, 86 Atl. 131 (1912); Seaboard A. L. R. v. Howe, 139 Ga. 429, 77 S. E. 387 (1913); Harris v. Hipsley, 122 Md. 418, 89 Atl. 852 (1914); Grand Rapids & Indiana R. Co. v. Oliver, 181 Ind. 145, 103 N. E. 1066 (1914). And so the court itself, if the intention of the jury can be clearly ascertained, may carry into effect its findings by amending the verdict so as to make it conform to such intention. Richardson v. Mellish, 3 Bingh. 334 (1825); Parks v. Turner, 12 How. (U. S.) 39, 13 L. ed. 883 (1851); Koon v. Insurance Co., 104 U. S. 106, 26 L. ed. 670 (1881); Erie City Iron Works v. Barber, 106 Pa. St. 125, 51 Am. Rep. 508 (1884), and see act of March 14, 1872, Pub. L. 25; Humphreys v. Woodstown, 48 N. J. L. 588, 7 Atl. 301 (1886); Hodgkins v. Mead, 119 N. Y. 166, 23 N. E. 559 (1890); Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98, 62 N. E. 317 (1901); Minot v. Boston, 201 Mass. 10, 86 N. E. 783 (1909); Wirt v. Reid, 138 App. Div. 760, 123 N. Y. S. 706 (1910) ; Parkin v. Safe Deposit Bank, 54 Pa. Super. Ct. 54 (1913); Kilgas v. Wayne Co., 85 N. J. L. 351, 88 Atl. 1056 (1913). But a verdict will not be altered unless it clearly appears that the alteration will be in accordance with the intention of the jury. Spencer v. Goter, 1 H. Bl. 79 (1788); Edwards v. McCaddon, 20 Iowa 520 (1866).

88 The statement of facts is abridged and part of the opinion omitted. 89A verdict is general if, in a criminal case, the jury find the defendant guilty or not guilty, or if in a civil case, they find for the plaintiff and state