Hodges v. Easton

L. S. Dixon, for plaintiffs in error.

H. M. Finch, for defendants in error.

HARLAN, J.

The foundation of this action is the alleged conversion by the plaintiffs in error, who were defendants below, of certain wheat, stored in separate bins, in the warehouse of William H. Valleau, in Decorah, Iowa. The complaint contains two counts, the first one of which proceeds upon the ground that the wheat, when so converted, was the property of the defendants in error, who were plaintiffs below. In the second count it is averred that, during the winter and spring of 1876, the First National Bank of Decorah, Iowa, discounted notes and drafts for, and loaned money to, said Valleau, upon the security of a large quantity of wheat delivered to the bank, of which he, Valleau, was then the owner and had the possession, and which was stored, in separate bins, in a warehouse in Decorah, Iowa; that thereby the wheat became the property of the bank; that subsequently, in April and May, 1876, Valleau, without repaying such loans and discounts, and without the knowledge and consent of the bank, wrongfully and tortiously took and removed the wheat from the warehouse and from the possession of the bank, shipped it to the defendants, at Milwaukee, by whom it was wrongfully and tortiously received and sold, and the proceeds converted to their own use; that no part of the moneys, so loaned and advanced, has ever been paid by Valleau, or by any one for him; that prior to this suit the bank sold, assigned, and transferred its right, title, and interest in the wheat, and all right of action to recover the same or its value, of which assignment the defendants had notice before this action; and, lastly, that prior to the commencement of the action the bank and plaintiffs had each demanded from defendants the delivery of the wheat, but they had refused to deliver it, or any part thereof, either to the bank or to plaintiffs. The answer denies, generally, 'each and every allegation, statement, matter, fact, and thing in the complaint set forth, alleged, and contained.' The record states that the jury, impaneled and sworn to try the issues, 'rendered a special verdict in answer to the questions propounded by the court.' The questions so propounded, with the answers thereto, were made the special verdict. The jury having been discharged, the plaintiffs, by counsel, moved for judgment upon the special verdict for the value of the wheat wrongfully converted by defendants, or for such damages as the court should adjudge, and for such other and further relief as might be granted in the premises. On a later day the defendants moved to set aside the special verdict and grant a new trial, upon the ground, among others, that the special verdict 'does not contain findings upon the material issues in the case.' These motions were heard together, and it was ordered by the court 'that the motion of defendants for a new trial be, and is hereby, overruled, and that the motion of the plaintiffs for judgment upon the special verdict of the jury, and facts concealed or not disputed upon the trial, be, and is hereby, granted.' The damages were assessed by the court at $12,554.89, for which sum judgment was entered against the defendants. From that judgment this writ of error is prosecuted.

Under the Code of Practice of Wisconsin the answer in this case puts in issue every material allegation in the complaint. 2 Tayl. St. Wis. 1871, p. 1439; Rev. St. Wis. 1878, § 2655. And since the practice, pleading, forms, and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts of the United States, must conform, as near as may be, to the practice, pleadings, forms, and modes of proceeding existing, at the time, in like causes in the courts of record in the state within which such circuit or district courts are held, (Rev. St. § 914,) it was incumbent upon the plaintiff-as was conceded in argument here-to prove, at the trial, among other things, that the bank had sold, assigned, and transferred all its title and interest in the wheat, and, thereby, also, its right to recover the wheat or its value. No bill of exceptions was taken showing the evidence introduced by either party, nor was there a general verdict. Having regard alone to the questions and answers propounded to the jury, it is clear that plaintiffs did not prove their case, as made by the first count, which proceeded upon the ground that the wheat was the property of the plaintiffs. no finding upon the issue, raised on finding upon the issue, raised by the second count, as to the alleged assignment by the bank to plaintiffs. No question was propounded to the jury upon that subject, nor was that point covered by the written stipulation as to the amount of freight and the value of the wheat. We infer from the oral statement of counsel for plaintiffs that, at the trial below, the assignment by the bank was conceded, and that the final judgment was based, in part, upon that concession. But in that representation, counsel who appeared in this court for defendants, but who did not participate in the trial in the circuit court,-did not feel authorized to concur. Looking, therefore, as we must, to the case as disclosed by the record, we are constrained to hold that the answers to the special questions propounded by the court, being silent as to the assignment by the bank, did not furnish a basis for judgment in behalf of plaintiffs. Without proof upon that point, plaintiffs, it is manifest, were not entitled to judgment upon the second count.

In Patterson v. U.S. 2 Wheat. 225, it was said that if it appeared to the court of original jurisdiction, or to the appellate court, that the verdict was confined to a part only of the matter in issue, no judgment could be rendered upon it. In Barnes v. Williams, 11 Wheat. 415, the claim of the plaintiff being founded upon a bequest of certain slaves, it was essential to a recovery at law that the assent of the executor to the legacy should be proved. This court, speaking by Chief Justice MARSHALL, said: