Opinion
Argued October 31, 1900
Decided November 16, 1900
Joseph S. Hunn for appellant. Walter S. Hubbell for respondent.
"A special verdict is one, by which the jury finds the facts only, leaving the court to determine, which party is entitled to judgment thereupon." (Code Civ. Pro. section 1186.)
"In an action to recover money only, or real property, or a chattel, the jury may render a general or special verdict, in its discretion." (Ib. section 1187.) As there was no objection, it may be assumed that the special verdict was rendered in the discretion of the jury. It is in other cases than those above mentioned that the court may direct the jury to find a special verdict upon all or any of the issues. (Ib.) No motion was pending for a nonsuit or for the direction of a verdict when the questions were submitted to the jury, and, therefore, the questions submitted do not come within the provisions of the section relating to that situation. We assume, therefore, that the questions submitted to the jury covered all the controverted facts deemed by the trial court to be material to the judgment. This is made clear by the charge of the court that if the purchase of the rubber and cement business was made without the knowledge and consent of the defendant Hagen the plaintiff could not recover.
It is thus settled by the answer to the first question that the defendant Hagen was a partner in the firm of F.W. France Co. when the firm note was given. And by the answer to the second question that the firm note was given as part consideration of the purchases of the rubber and cement business by the firm. Thus both the act of buying and of paying was by the firm. The firm was a party to the entire transaction.
The further finding by the jury that the purchase was not made with the knowledge or consent of the defendant Hagen, is of itself inconsequent. Each partner was the lawful agent of the other in all matters within the scope of the business of the firm. The first and second findings negative the idea that the purchase was made by or for any other person than the firm, or for any other purpose than that of the firm. Presumably, therefore, the purchase was within the scope of the firm business. There is no finding that it was not. There is no room in the findings for the conclusion that France gave the firm note for his individual purpose. And as he gave the note of the firm for firm purposes, it was immaterial whether Hagen knew or consented to the transaction at the time. It is not found that he never ratified it, or that the firm never took over the new business.
We think the judgment should be reversed and a new trial granted, costs to abide the event.
GRAY, O'BRIEN, CULLEN and WERNER, JJ., concur; PARKER, Ch. J., and HAIGHT, J., dissent.
Judgment reversed, etc.