Certain questions, covering only a part of the material issues
of fact, were propounded to the jury, who returned them with the
answers thereto, are a special verdict. The judgment against the
defendant recites that it was rendered "upon the special verdict of
the jury, and facts conceded or not disputed upon the trial." The
record does not disclose the evidence, and no general verdict was
rendered.
Held that the judgment, not being sustained by
the special verdict, must be reversed and a new trial ordered.
The facts are stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This was a suit by Easton and Bigelow against Hodges and Smith
to recover damages for the alleged conversion of certain wheat
stored in separate bins in the warehouse of William H. Valleau in
Decorah, Iowa.
The complaint contains two counts. The first proceeds upon the
ground that the wheat, when so converted, was the property of the
plaintiffs. The second avers 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,
Page 106 U. S. 409
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 anyone 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
Page 106 U. S. 410
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
Taylor's Stat.Wis. 1871, p. 1439. 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, 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 their property.
It is equally clear that there was no finding upon the issue,
raised by the second count, as to the alleged assignment by the
bank to them. No question was propounded 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 the 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 the
defendants -- but who did not participate in the trial -- 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 favor of the plaintiffs. Without proof upon that
point, they were not entitled to judgment upon the second count. In
Patteraon v. United
States, 2 Wheat. 221, it was
Page 106 U. S. 411
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 Mr. Chief Justice
Marshall, said:
"Although in the opinion of the Court there was sufficient
evidence in the special verdict from which the jury might have
found the fact, yet they have not found it, and the court could
not, upon a special verdict, intend it. The special verdict was
defective in stating the evidence of the fact instead of the fact
itself. It was impossible, therefore, that a judgment could be
pronounced for the plaintiff."
But it is suggested that the final judgment, upon its face,
shows that it was not based exclusively on answers to the special
questions, and the stipulation by the parties as to the amount of
freight and value of wheat, but also "upon facts conceded or not
disputed upon the trial." Although this Court is not informed by
the record as to what those conceded and undisputed facts are, it
is insisted that we should presume, in support of the judgment,
that they were, in connection with the facts specially found,
sufficient to justify the action of the court below. This position,
it is contended, is sustained by numerous decisions of the Supreme
Court of Wisconsin upon the subject of general and special
verdicts, as defined and regulated by the laws of that state in
force when this action was tried.
It is not necessary in this opinion to enter upon an examination
of those decisions or to consider how far the local law controls in
determining either the essential requisites of a special verdict in
the courts of the United States, or the conditions under which a
judgment will be presumed to have been supported by facts other
than those set out in a special verdict. The difficulty we have
arises from other considerations. The record discloses that the
jury determined a part of the facts, while other facts upon which
the final judgment was rested were found by the court to have been
conceded or not disputed. If we should presume that there were no
material facts considered
Page 106 U. S. 412
by the court beyond those found in the answers to special
questions, then, as we have seen, the facts found. do not authorize
the judgment. If, on the other hand, we should adjudge it to have
been defendants' duty to preserve the evidence in a bill of
exceptions, and that, in deference to the decisions of the State
court, it should be presumed that the "facts conceded or not
disputed at the trial" were, in connection with the facts
ascertained by the jury, ample to support the judgment, we then
have a case at law, which the jury were sworn to try, determined,
as to certain material facts, by the court alone, with out a waiver
of jury trial as to such facts. It was the province of the jury to
pass upon the issues of fact, and the right of the defendants to
have this done was secured by the Constitution of the United
States. They might have waived that right, but it could not be
taken away by the court. Upon the trial, if all the facts essential
to a recovery were undisputed, or if they so conclusively
established the cause of action as to have authorized the
withdrawal of the case altogether from the jury, by a peremptory
instruction to find for plaintiffs, it would still have been
necessary that the jury make its verdict, albeit in conformity with
the order of the court. The court could not, consistently with the
constitutional right of trial by jury, submit a part of the facts
to the jury, and, itself, determine the remainder without a waiver
by the defendants of a verdict by the jury. In civil cases, other
than those in equity and admiralty, and except where it is
otherwise provided in bankruptcy proceedings, "the trial of issues
of fact" -- that is, of all the material issues of fact -- "in the
Circuit Courts shall be by jury," unless the parties, or their
attorneys of record, stipulate in writing for the waiver of a jury.
Rev.Stat., sects. 648, 649. There is no such stipulation in this
case, and there is nothing in the record from which such
stipulation or waiver may be inferred. It has been often said by
this court that the trial by jury is a fundamental guarantee of the
rights and liberties of the people. Consequently every reasonable
presumption should be indulged against its waiver. For these
reasons the judgment below must be reversed.
One other point discussed by counsel for defendants in error
must be noticed. He insisted that the order of reversal, if one
Page 106 U. S. 413
be made, should be accompanied by a direction to the court below
to restrict the next trial to such issues as are not covered by the
answers of the jury to special questions. In support of this
position, we have been referred to several adjudications which seem
to recognize the authority of the court, when setting aside a
judgment, to restrict the subsequent trial to such issues as were
not passed upon by the jury at the first trial. Whether this
contention be sound or not we need not now determine, for the
reason that the grounds upon which it rests have no existence
where, as here, the case, as to the issues triable by jury, was not
submitted to the jury in the mode required by law. There is, then,
no alternative but to reverse the judgment, with directions that a
trial be had upon all the material issues of fact, and it is
So ordered.