Where, in a special verdict, the essential facts are not
distinctly found by the jury, although there is sufficient evidence
to establish them, this Court will not render a judgment, but
remand the cause to the court below for a
venire facias de
novo.
Therefore, where a suit was brought by an endorsee upon a
promissory note, and the special verdict found that the original
consideration of the note was fraudulent on the part of the payee,
but omitted to find whether the holder had given a valuable
consideration for it or received it in the regular course of
business, and the court below gave judgment for the defendant, this
Court could not decide whether that judgment was erroneous or not,
and would have been compelled to remand the case.
But the parties below agreed to submit the cause to the court,
both on the facts and the law. This Court must presume that the
court below founded its judgment upon proof of the fact as to the
manner in which the holder received it, and must therefore affirm
the judgment of the court below.
In 1836, Platoff Zane, a citizen of Virginia, being in
Pennsylvania, executed the following promissory note:
"$5,437 50/100. Philadelphia, November 28, 1836. Five years
after date, I promise to pay to the order of James H. Johnson five
thousand four hundred and thirty-seven 50/100 dollars, without
defalcation, for value received."
"PLATOFF ZANE"
On some day afterwards (the record did not show when), this note
was endorsed in blank by Johnson the payee, and delivered to John
Stivers, who handed it over to Prentice & Weissinger without
putting his own name upon it.
On 8 May, 1840, Prentice & Weissinger filed a bill before
the Honorable George M. Bibb, Judge of the Louisville Chancery
Court in Kentucky, against the above-named John Stivers and one
John Thomas. The bill stated that the complainants and Thomas were
sureties for Stivers as principal in a debt which Stivers owed to
the Bank of Louisville, that the complainants had paid the debt,
and now required Thomas to contribute one-half.
Page 49 U. S. 471
On 16 June, 1840, Thomas answered and also filed a cross-bill.
He alleged that Stivers had placed in the hands of Prentice &
Weissinger a large amount of securities, and required an exhibition
thereof. Weissinger answered the cross-bill and gave in a list of
these securities, amongst which was Zane's note, to which was
attached the remark that they had received notice that the note
would be defended on the ground of no consideration. The answer
also offered to transfer all the securities to Thomas for eighty
percent of their amount, averring a belief of their insufficiency
to pay the debt.
Here these proceedings in chancery stopped.
On 7 November, 1845, Prentice & Weissinger, citizens of
Louisville, Kentucky, brought an action of debt against Zane in the
District Court of the United States for the Western District of
Virginia upon the above-mentioned promissory note.
The defendant pleaded
nil debet, and the case went to a
jury, who found a special verdict. Before reciting this, it may be
mentioned that the deposition of Jacob Anthony, therein referred
to, proved that the note in question was passed by Stivers to
Prentice & Weissinger, to indemnify them for money paid by
them, as his endorsers, in bank.
"The jury said that it found that the note in these words:"
"$5,437 50/100. Philadelphia, November 28, 1836. Five years
after date, I promise to pay to the order of James H. Johnson five
thousand four hundred and thirty-seven 50/100 dollars, without
defalcation, for value received."
"Platoff Zane"
"was made by the defendant and delivered to the payee at the
date thereof at Philadelphia, in the State of Pennsylvania, and
that said note was endorsed by the payee and delivered by him, so
endorsed, to one John Stivers, at the City of Louisville, in the
State of Kentucky, before the maturity thereof; that there has not
been any evidence submitted to us that said Stivers paid value
therefor, or that there was any consideration for such endorsement,
unless the same ought to be inferred from the matters herein
stated, but should the court be of opinion that, from the facts and
evidence herein found, the jury ought to presume that said
endorsement to said Stivers was made for a valuable consideration,
then we find that the same was made for full value received by the
payee from said Stivers therefor; otherwise we find that the same
was made without any consideration or value therefor. And we
further find that said Stivers afterwards, but before the said note
became payable, delivered the same (endorsed in blank by the payee
as aforesaid, but not endorsed by the said Stivers) to the
plaintiffs, at the City of Louisville aforesaid, for the purposes
and upon the
Page 49 U. S. 472
consideration shown in the deposition of Jacob Anthony, and the
record of a bill, answer, and cross-bill and answers; which
deposition and record are in the words and figures following,
to-wit:"
"[The deposition and record were then set forth
in
extenso, and the special verdict proceeded thus:]"
"We further find that the consideration of said note was
fraudulent on the part of the payee, and such that the payee could
not recover against the maker upon said note."
"But we further find, that the plaintiffs had no notice of the
fraudulent consideration of said note at or before the time the
same was delivered to them as aforesaid."
"And we find that the defendant, since the institution of this
suit, has duly served the plaintiffs with a notice in the following
words, to-wit:"
"An action of debt in the District Court of the United States
for the Western District of Virginia between PRENTICE &
WEISSINGER, Plaintiffs, and PLATOFF ZANE, Defendant."
" The defendant in this suit will offer evidence to show and
will insist at the trial that the note described in the declaration
was obtained from him, said defendant, by the payee thereof, by
means of misrepresentation and fraud, and without any value having
been received therefor by said defendant, and will require the
plaintiffs to prove at the trial the consideration, if any, paid by
them, or the previous holder or holders thereof, for the same, and
the time and manner in which they became possessed of said note.
Very respectfully &c.,"
"PLATOFF ZANE"
"
By JACOB & LAMB, his Attorneys"
" TO MESSRS. PRENTICE & WEISSINGER"
" Due service of above admitted."
"M. C. GOOD,
Attorney for Plaintiffs"
"We further find the statute of Pennsylvania in force within
that state at the time of the execution of said note, and the
endorsement thereof and delivery of the same to the plaintiffs as
aforesaid, in these words:"
"
Act of 27 February, 1797 -- 4 Dall. 102; 3 Smith
278"
"
An act to devise a particular Form of Promissory Notes not
liable to"
"
any Plea of Defalcation or Set-off"
" 6. SEC. 1. All notes in writing, commonly called promissory
notes, bearing date in the City or County of Philadelphia
Page 49 U. S. 473
whereby any person or persons, bodies politic or corporate, or
co-partnership in trade, shall promise to pay, or cause to be paid,
to any other person or persons, bodies politic or corporate, or
co-partnership in trade, and to the order of the payee for value in
account, or for value received, and in the body of which the words
'without defalcation' or 'without set-off' shall be inserted shall
be held by the endorsees discharged from any claim of defalcation
or set-off by the drawers or endorsers thereof, and the endorsees
shall be entitled to recover against the drawer and endorsers such
sums as, on the face of the said notes or by endorsements thereon
shall appear to be due, provided always that in every action
brought by the holder of any such note, whether against the drawer
or endorsers, the defendant may set off and defalk so far as the
plaintiffs shall be justly indebted to him in account by bonds,
specially, or otherwise."
" (See 8 Serg. & R. 481, and posted notes.)"
" A copy from a copy filed in my office."
" Teste: ALEXANDER T. LAIDLEY,
Clerk"
" And if the law be for the plaintiffs, then we find for them
the sum of $5437.50, the debt in the declaration mentioned, with
interest thereon at the rate of six percent per annum from 1
December, 1841, till paid. But if the law be for the defendant then
we find for the defendant."
"T. W. HARRISON"
"And because the court will consider of what judgment should be
rendered upon the verdict aforesaid, time is taken until
tomorrow."
"
Memorandum. Upon the trial of this cause, the parties,
by their attorneys, filed a written agreement in the words
following, to-wit:"
" And the parties agree that the court, in deciding upon the
foregoing verdict, shall look to and regard the decisions of the
courts of the State of Pennsylvania, as found in the several
printed volumes of the reports thereof, to avail as much as if the
same were found by said verdict, and to have such weight as in the
judgment of the court they ought to have, and the parties further
agree to waive all objections to said verdict on account of its
finding in part evidence, and not fact. And that the court, in
deciding thereupon, may make all just inferences and conclusions of
fact and law from the evidence and facts therein stated, and the
decisions aforesaid, which, in the opinion of the court, a jury
ought to draw therefrom, if the same were submitted to them upon
the trial of this cause, and that
Page 49 U. S. 474
this agreement is to be made part of the record in this
suit."
"M. C. GOOD,
Attorney for Plaintiffs"
"JACOB & LAMB,
Attorneys for Defendant"
"Which agreement is ordered to be made a part of the record in
this suit."
"On the 9th of September, 1846, the district court pronounced
the following judgment,
viz.:"
" The matters of law arising upon the special verdict in the
cause being argued at a former term of this court and the court
having maturely considered thereof, it seems that the law is for
the defendant."
A writ of error brought the case up to this Court.
Page 49 U. S. 483
MR. JUSTICE GRIER delivered the opinion of the Court.
The plaintiffs in error were plaintiffs below. They declared
Page 49 U. S. 484
on a promissory note given by defendant to James H. Johnson or
order for the sum of $5,437.59, payable five years after date. The
note was endorsed by the payee and delivered to John Stivers, who
delivered it to the plaintiffs. The defendant pleaded
nonassumpsit, and a jury, being called, found a special
verdict setting forth the note and finding that it was made by the
defendant and delivered by him to the payee, but that "the
consideration was fraudulent on the part of the payee," that the
note was endorsed by the payee to John Stivers before its
maturity,
"and that there has not been any evidence submitted to the jury
that said Stivers paid value therefor, or that there was any
consideration for such endorsement unless the same ought to be
inferred from the matters herein stated,"
&c. They also find that Stivers delivered the note to
plaintiffs, but without saying whether for a valuable consideration
or not, and they refer the court to be deposition of a witness and
the record of a chancery suit appended to the verdict for the
evidence on that point.
This special verdict is manifestly imperfect and uncertain, as
it finds the evidence of facts, and not the facts themselves.
A verdict, says Coke (Co.Litt. 227
a), finding matter
uncertainly and ambiguously is insufficient, and no judgment will
be given thereon.
A verdict which finds but part of the issue and says nothing as
to the rest is insufficient, because the jury have not tried the
whole issue. So if several pleas are joined and the jury find some
of them well, and as to others find a special verdict which is
imperfect, a
venire facias de novo will be granted for the
whole. 2 Roll.Abr. 722, Pl. 19;
Auncelme v. Auncelme,
Cro.Jac. 31;
Woolmer v. Caston, id., 113;
Treswell v.
Middleton, id., 653;
Rex v. Hayes, 2 Ld.Raym.
1518.
In all special verdicts, the judges will not adjudge upon any
matter of fact but that which the jury declare to be true by their
own finding, and therefore the judges will not adjudge upon an
inquisition or aliquid tale found at large in a special verdict,
for their finding the inquisition does not affirm that all in it is
true.
Street v. Roberts, 2 Sid. 86.
In
Chesapeake Ins. Co. v.
Stark, 6 Cranch 268, and
Barnes v.
Williams, 11 Wheat. 415, this Court has decided
that where in a special verdict the essential facts are not
distinctly found by the jury, although there is sufficient evidence
to establish them, the Court will not render a judgment upon such
an imperfect special verdict, but will remand the cause to the
court below with directions to award a
venire de novo.
The Court in this case would have been bound to pursue the
same
Page 49 U. S. 485
course if the judgment of the court below had been rendered on
the imperfect special verdict which the record exhibits. But it
appears that the court and counsel were aware of this imperfection
in the verdict, and that it was not such as would warrant any
judgment thereon by the Court. Nevertheless the parties, instead of
asking for a
venire de novo or amending the verdict, agree
to waive the error and to submit the cause to the Court both on the
facts and the law. Their agreement is as follows:
"
Memorandum. Upon the trial of this cause the parties,
by their attorneys, filed a written agreement in the words
following, to-wit:"
" And the parties agree that the court, in deciding upon the
foregoing verdict, shall look to and regard the decisions of the
courts of the State of Pennsylvania, as found in the several
printed volumes of the reports thereof, to avail as much as if the
same were found by said verdict, and to have such weight as in the
judgment of the court they ought to have; and the parties further
agree to waive all objections to said verdict on account of its
finding in part evidence, and not fact. And that the court, in
deciding thereupon, may make all just inferences and conclusions of
fact and law from the evidence and facts therein stated, and the
decisions aforesaid, which, in the opinion of the court, a jury
ought to draw therefrom if the same were submitted to them upon the
trial of this cause; and that this agreement is to be made part of
the record in this suit."
The judgment of the court below was rendered upon this
submission, and not on the special verdict alone.
In cases at law, this Court can only review the errors of the
court below in matters of law appearing on the record. If the facts
upon which that court pronounced their judgment do not appear on
the record, it is impossible for this Court to say that their
judgment is erroneous in law. What "inferences or conclusions of
fact" the court may have drawn from the evidence submitted to them
we are not informed by the record. The fact submitted to the judge
formed the turning point of the case. So far as the record exhibits
the facts, no error appears. The note being found to have been
obtained from the defendant by fraud, the plaintiff's right to
recover on it necessarily depended on the fact that he gave some
consideration for it or received it in the usual course of trade.
We must presume that the court found this fact against the
plaintiff, and if so, their judgment was undoubtedly correct.
Whether their "inferences or conclusions of fact" were correctly
drawn from the evidence is not for this Court to decide.
Page 49 U. S. 486
That such has been the uniform course of decision in this Court
may be seen by reference to a few of the many cases in which the
same difficulty has occurred. In
Hyde v.
Booraem, 16 Pet. 169, this Court said:
"We cannot upon a writ of error revise the evidence in the court
below in order to ascertain whether the judge rightly interpreted
the evidence, or drew right conclusions from it. That is the proper
province of the jury or of the judge himself if the trial by jury
is waived. The Court can only reexamine the law so far as he has
pronounced it on a state of facts, and not merely on the evidence
of facts found in the record in the making of a special verdict or
an agreed case. If either party in the court below is dissatisfied
with the ruling of the judge in a matter of law, that ruling should
be brought before the supreme court, by an appropriate exception,
in the nature of a bill of exceptions, and should not be mixed up
with supposed conclusions in matters of fact."
See also Minor v.
Tillotson, 2 How. 394, and
United
States v. King, 7 How. 833.
The judgment of the court below is therefore
Affirmed.
MR. JUSTICE McLEAN, MR. JUSTICE WAYNE, and MR. JUSTICE WOODBURY
dissented.
MR. JUSTICE WAYNE.
I do not concur with the Court in the course which it has taken
in this case or in affirming the judgment. The record in my view is
irregular. It is difficult to say whether it has been brought to
this Court upon a special verdict or a case stated by agreement of
the parties, and I think it difficult to determine whether the
court below acted upon either. It may have given its judgment
pro forma to get the case to this Court. I think a
different direction ought to have been given to it by returning the
case to the district court for amendment, so that the case might
have been decided substantially upon its merits. This would have
been according to what has been done by this Court in other cases
similarly circumstanced as this case is.
MR. JUSTICE WOODBURY.
I feel obliged to dissent from the judgment in this case. It is
conceded that the special verdict is defective in form. Instead of
stating some of the matter as a fact, only the evidence of it is
given. The most obvious and proper course under such circumstances
would seem to be to send the case back and give an opportunity to
the plaintiff to have that defect corrected, and afterwards, if the
case comes up again,
Page 49 U. S. 487
to render judgment on the merits upon all the facts, when thus
formally set out. This could regularly be done by reversing the
judgment below instead of affirming it as here. That judgment was
rendered erroneously on this same defective verdict, instead of
putting it first in proper shape and then deciding on it as
corrected.
After the reversal here, we should, in my opinion, remand the
case of the circuit court, not to have judgment entered there
either way on this imperfect verdict, but to have a
venire de
novo ordered so as to correct it. Such I understand to be the
well settled practice of this Court. As decisive proof that the
course now pursued of refusing to send the case back for correction
before final judgment is not in accordance with what has been done
by this Court in like cases, Chief Justice Marshall, in
Chesapeake Ins. Co. v.
Stark, 6 Cranch 268, observed
"In this case, the jury has found an abandonment, but has not
found whether it was made in due time or otherwise. The fact is
therefore found defectively, and for that reason a
venire
facias de novo must be awarded. . . . Judgment reversed and
the cause remanded with directions to award a
venire facias de
novo."
Such was deemed the proper course there, rather than at once to
give absolute and final judgment, as here, against the plaintiff
because the special verdict was defective. Another objection there
was precisely as here, "because the jury have found the evidences
of the authority and time, but not the fact of authority nor the
reasonableness of the time." P. 271 [argument of counsel --
omitted].
So again, in
Livingston v. Mar. Ins.
Co., 6 Cranch 280, the Court made a like order. And
another of similar character in
Barnes v.
Williams, 11 Wheat. 415. We should thus obtain a
verdict in due form, with all the facts found positively, and not
the mere evidence of some of them submitted. And the judgment below
could then be rendered understandingly, as it could also here, if
the case was again brought here by either party.
It does not seem promotive of justice to affirm a judgment below
on the ground that the imperfect verdict must at all events stand,
and to decide technically on the hypothesis that a certain
transaction is not in the case as a fact, and is not to be
considered, nor allowed to be corrected and restated, though full
evidence of it is submitted. And the more especially does it look
wrong where, if it was corrected in conformity with what the
evidence proves, the judgment ought, in my view, to be for the
plaintiffs.
But it is objected that the counsel agreed below to waive
Page 49 U. S. 488
this exception to the special verdict, and consequently the
court there rendered judgment on that agreement and waiver, as well
as on the verdict, and that this was a wrong course of
proceeding.
Supposing it was wrong, there is no proof that the court acted
on the agreement and waiver, but may have deemed it proper to
disregard them and decide on the verdict alone. On the contrary, if
that court decided on the whole, their decision for the defendant
seems to me erroneous both on the merits and on the course of
proceeding, and ought in either court to be reversed instead of
affirmed, as it has been on this occasion by the majority of this
Court. The original plaintiffs should, on the apparent merits, in
my apprehension, recover, because no doubt exists first that in
point of law the note in controversy must be construed by the laws
of Pennsylvania, where it was made, and that by those laws it was
negotiable.
See Act of February 27, 1797, 4 Dallas Laws of
Pennsylvania 102.
It is as little in doubt that no pretense exists but that the
plaintiffs took this note from the second endorsees before it was
due, and without any circumstances to excite suspicion or cast a
shade over its goodness, and without any notice or knowledge of the
badness of its original consideration.
Under such circumstances it is equally clear that such a
bona fide holder of a note is presumed to have given a
valid consideration for it, and on producing it is entitled to a
recovery of its amount unless this presumption is repelled by
counter evidence. Story on Prom. Notes 220.
Furthermore, in such case it is no obstacle to a recovery that a
consideration is not shown between the first endorsee and his
endorser. 1 Ad. & Ell. 498.
But it is found here that, for some reason not specified in the
record, there was fraud in the original consideration. Hence it is
contended that the holder must in such case prove a consideration
given by him; but he is not otherwise affected by the original
fraud when without notice of it. 4 Ad. & Ell. 470; Chit. on
Bills 69.
Granting this for the argument, it appears that he proceeded to
show a consideration, and proved that the second endorsee passed
the note to him to secure and pay certain debts and liabilities
assumed then in his behalf, as would seem to be inferable from the
record. It would in that event be obtained in the course of
business for a new and original consideration, and thus the
transfer stood unimpeached. But if the debts were preexisting ones,
as is contended, they would still constitute a
Page 49 U. S. 489
good consideration. However the decisions in different states on
this may differ and may have changed at different periods, this
Court seems deliberately to have held this doctrine in
Swift v.
Tyson, 16 Pet. 15,
41 U. S. 22.
It will not answer to overturn all these established principles
because some might fancy the equities of the maker, who was
defrauded as to the consideration, greater than those of the
present holder, who paid a full and valuable consideration for the
note, relying, too, on the good faith of the maker, not to send
negotiable paper into the market, and running for five years, so as
to mislead innocent purchasers, and, for aught which appears,
making no attempt to recall it when discovering he was defrauded,
and giving no public and wide caution, as is usual, by
advertisement or otherwise, against a purchase of it after such
discovery.
Under such circumstances, if equities were to weigh,
irrespective of the law, which cannot be correct, they seem rather
to preponderate in favor of the holder, who has thus been misled
and exposed to be wronged by the conduct of the maker.
United States v. Bank of
the Metropolis, 15 Pet. 398.
Finally, were we compelled to give a decision as to the merits
on the special verdict, as it now stands somewhat defective in
form, but with an agreement by counsel virtually to waive the
defect of form, it would be most just to regard the jury as
intending to find for a fact what they find as given in evidence
and uncontradicted. This is clearly the substance of this verdict,
and in such a view, as already shown, the same result would follow,
that the plaintiffs appear in law entitled to recover.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Western
District of Virginia, and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said district court in this cause be and the same
is hereby affirmed with costs.
