36 terms of a grant;32 as to the validity and effect of a Mexican grant; as to its loss and contents; or as to the effect of mesne conveyance through which plaintiff claimed under the grant;33 if there is no dispute about the facts, the question what premises are embraced by the terms of the instrument, are questions for the court.3 34 Insurance: Whether preliminary proofs of loss of vessel are sufficient to satisfy requirements of policy, and whether facts shown amount to a waiver of defects in the proofs, are questions for the court.35 Judgment: Whether a judgment was properly entered 3 is a question of law; but the issue nul tiel record is for the jury.37 Jurisdiction: Whether the proceedings of the probate court showed jurisdiction to make certain orders is a question of law. 38 Libel: Whether the article is libelous on its face is a question for the court;39 but whether the language is capable of bearing the meaning assigned by the court, or whether the meaning is truly assigned to the language, is for the jury.40 Mining laws: The construction of mining laws, when introduced in evidence, is a question for the court." Negligence: Where facts are ascertained, whether they amount to negligence.42 New promise: Where the facts are undisputed, it is for the court to determine whether a sufficient promise has been made to take the case out of the statute.43 Notice: The sufficiency of the notice of the dishonor of a note, where there is no dispute about the facts, is a question of law. So the question whether the notice was given within a reasonable time,45 or whether the holder used due diligence 65 Am. Dec. 493; Sturtevant v. Ballard, 9 Johns. 337, 6 Am. Dec. 281; Jennings v. Carter, 2 Wend. 446, 20 Am. Dec. 635; Gage v. Parker, 25 Barb. 141; Erwin v. Voorhees, 26 Barb. 127; Edgell v. Hart, 9 N. Y. 213, 59 Am. Dec. 532. 32 Frier v. Jackson, 8 Johns. 495. 33 Seaward v. Malotte, 15 Cal. 304. 34 St. John v. Bumpstead, 17 Barb. 100. 35 Miller v. Eagle Life etc. Ins. Co., 2 E. D. Smith, 268. 36 Leese v. Clark, 28 Cal. 26. 37 Fasnacht v. Stehn, 53 Barb. 650, 5 Abb. Pr. (N. S.) 338. 88 Seaward v. Malotte, 15 Cal. 304. 39 Matthews v. Beach, 5 Sandf. 256. 40 Blagg v. Start, 10 Q. B. 899; Broome v. Goslen, 1 Com. B. 728; 42 Dascomb v. Buffalo etc. R. R. Co., 27 Barb. 221; Steves v. Oswego etc. R. R. Co., 18 N. Y. 422; Mackey v. New York Cent. R. R. Co., 27 Barb. 528, note; Brooks v. Buffalo etc. R. R. Co., 27 Barb. 532; Brendell v. Buffalo etc. R. R. Co., 27 Barb. 534, note. 43 Clarke v. Dutcher, 9 Cow. 674. 44 Cayuga Co. Bank v. Warden, 6 N. Y. 19; Farmers' Bank v. Vail, 21 N. Y. 487. 45 Bryden v. Bryden, 11 Johns. 187; Tindal v. Brown, 1 T. R. 167; Scheibel v. Fairbain, 1 Bos. & Pul. 388. 47 to find the drawer or indorser.46 So whether a written notice of protest is sufficient in terms to charge an indorser. Parties: The question as to proper parties plaintiff is a question of law.48 Partnership: If facts are undisputed, the question of partnership is for the court.49 Probable cause and reasonable cause are questions of law.50 Probable cause is a mixed question of law and fact.51 Receipt: The facts being undisputed, and as establishing an accord and satisfaction, is a question of law.52 Time: Where the law defines what is a reasonable time, the question is one of law for the court.53 Waste: The question as to what amounts to a waste is a question of law or fact.54 Written instrument: That a written instrument is or is not a mortgage,55 and the legal effect of written documents,56 are questions of law. § 1127. Issues of fact.-An issue of fact is an issue taken upon or consisting of matters of fact, the fact only, and not the law, being disputed.57 Such issues arise: 1. Upon a material allegation in the complaint, controverted by the answer; 2. Upon new matters in the answer, except an issue of law is joined thereon.58 In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference be ordered. In other cases issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, 46 Utica Bank v. Bender, 21 Wend. 643, 34 Am. Dec. 281; Spencer v. Bank of Salina, 3 Hill, 520. 47 Remer v. Downer, 23 Wend. 620; Ransom v. Mack, 2 Hill, 587, 38 Am. Dec. 602; Dole v. Gold, 5 Barb. 490; Cook v. Litchfield, 9 N. Y. 279. 48 Seaward v. Malotte, 15 Cal. 304. 49 Cumpston v. McNair, 1 Wend. 457. 50 1 T. R. 542; 1 Gale & D. 504; Bulkeley v. Keteltas, 6 N. Y. 384; Carpenter v. Shelden, 5 Sandf. 77; Gordon v. Upham, 4 E. D. Smith, 9; Waldheim v. Sichel, 1 Hilt. 45; Bulkeley v. Smith, 2 Duer, 261; Besson v. Southard, 10 N. Y. 236; McCormick v. Sisson, 7 Cow. 715; Pangburn v. Bull, 1 Wend. 345; Masten v. Deyo, 2 Wend. 424; Hall v. Suy dam, 6 Barb. 83; Stevens v. Lacour, 10 Barb. 62. 51 Potter v. Seale, 8 Cal. 217; Grant v. Moore, 29 Cal. 644; Brant v. Higgins, 10 Mo. 728. 52 Vedder v. Vedder, 1 Denio, 257. 53 Luckhardt v. Ogden, 30 Cal. 547. 54 Jackson v. Brownson, 7 Johns. 227, 5 Am. Dec. 258; Cooper v. Stower, 9 Johns. 331; Jackson v. Tibbits, 3 Wend. 341; Kidd v. Dennison, 6 Barb. 9; McGregor v. Brown, 10 N. Y. 114. 55 Fairbanks v. Bloomfield, 2 Duer, 353. 56 Carpentier v. Thirston, 24 Cal. 268. 57 3 Bl. Com. 314; Co. Lit. 126a; 3 Steph. Com. 572. 58 Cal. Code Civ. Proc., § 590. See, 59 60 or to be referred to a referee. They are made by the pleadings, and should be submitted to the jury as thus made. The question whether an issue of fact must be tried by a jury or by the court is not to be determined from the nature of the issue, but from the character of the action in which issue is joined.o1 The right of trial by jury is a right of which no litigant in a proper case can be deprived without his consent; and if the court refuses a demand for a jury trial of issues of fact in an action at law, it is an error for which the appellate court ought to grant a new trial, notwithstanding the issues have been fairly tried by the court and proper judgment rendered."2 In an equitable action the issues of fact raised by the pleadings should be tried by the court, unless submitted by the court to a jury.63 In such case the verdict is merely advisory.64 66 68 Various illustrations of questions which raise an issue of fact are as follows, to-wit: Abandonment: When, in ejectment on prior possession, abandonment is pleaded, and evidence on it is introduced, the question of adverse possession is for the jury.65 So of mining claims.65a So whether an abandonment of insured vessel is accepted or not. Appurtenances: What are appurtenances of a steamboat is a question of fact for the jury." Assent: Whether a party has assented to acts of the sheriff. So knowledge or assent, generally, is a question of fact." Baggage: Whether articles of a doubtful character are to be deemed as baggage is a question of fact.70 Bill of exchange: That a bill was presented for payment, and payment demanded, is a question of fact." Compensation: In a suit for services rendered, whether such were intended to be gratuitous is a question for the jury."2 Compulsion: The question of compulsion in the ejection of a passenger also, N. Y. Code Civ. Proc., § 964; Or. B. & C. Codes, § 111. 59 Cal. Code Civ. Proc., § 592. 60 Bankston v. Farris, 26 Mo. 175; Overton v. Webster, 26 Mo. 332. 61 Danielson v. Gude, 11 Colo. 87, 17 Pac. 283. 62 Treadway v. Wilder, 12 Nev. 108. 63 McLaughlin v. Del Re, 64 Cal. 472, 2 Pac. 244; Churchill v. Baumann, 104 Cal. 369, 36 Pac. 93, 38 Pac. 43; Santa Cruz etc. Co. v. Bowie, 104 Cal. 286, 37 Pac. 934. 64 McCarthy v. Gaston & Co., 144 Cal. 546, 78 Pac. 7. 65 Roberts v. Unger, 30 Cal. 676; Jackson v. Joy, 9 Johns. 102. 65a Waring v. Crow, 11 Cal. 371. 66 Bell v. Smith, 2 Johns. 98. 67 Amis v. Steamboat Louisa, 9 Mo. 629. 68 Moore v. Westervelt, 2 Duer, 59. 69 Weaver v. Page, 6 Cal. 681; Bensley v. Atwill, 12 Cal. 231. 70 Grant v. Newton, 1 E. D. Smith, 95. 71 Graham v. Machado, 6 Duer, 514. 72 Pendleton V. Empire Stone Dressing Co., 19 N. Y. 13. 79 from a railroad-car is one for the jury." Conversion: The time of the conversion," and the amount of damages in action for the detention of personal property," are questions for the jury. Custom: Whether such a custom existed or not is a question of fact.78 Death of parties: Where the death of one of the defendants is put in issue by the pleadings, it should, like every other issue of fact, be left to the jury." Dedication: What amounts to a dedication of homestead is a question of fact.78 So of the dedication of land for a street. Delivery of goods: Whether absolute or conditional, is a question of fact.80 Description of land: Whether the land as described in the deed given in evidence is the same as that described in the deed declaration is a question for the jury.81 So where parol evidence is resorted to to identify the calls of a survey, the facts must be found by the jury.82 Diligence and care is a question of fact for the jury.83 Election or intention is a question of fact for the jury.84 Evidence: The weight of evidence is a question for the jury.85 Whether evidence is sufficient to prove execution of a bond.86 It is for the jury, and not the court, to construe the meaning of an ambiguous reply to a question in a deposition.87 Fixtures: Whether personal property has been annexed to the freehold, or whether it was so annexed for the purposes of trade only, is a question of fact.88 Foreign law: What is law of a foreign country is a question of fact.89 Fraud: Actual fraud is always a question of fact."1 Whether omission to 73 Kline v. Central Pacific R. R. Co., 37 Cal. 400, 99 Am. Dec. 282, 39 Cal. 587. 74 Hyde v. Stone, 9 Cow. 230, 18 Am. Dec. 501. 75 Bartlett v. Hogden, 3 Cal. 55. 76 Panaud v. Jones, 1 Cal. 500. 77 Fowler v. Houston, 1 Nev. 469. 78 Cook v. McChristian, 4 Cal. 23. 79 Harding v. Jasper, 14 Cal. 648. See Alemany v. Petaluma, 38 Cal. 553. 80 Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331; Fleeman v. McKean, 25 Barb. 474; Downer V. Thompson, 6 Hill, 208. 81 Lawless v. Newman, 5 Mo. 236; Newman v. Lawless, 6 Mo. 279. 82 Ott v. Soulard, 9 Mo. 581. 83 Richmond v. Sacramento Valley R. R. Co., 18 Cal. 351. As to ordinary care, see Aymar v. Astor, 6 Cow. 267. P. P. F. Vol. I-45 84 Clift v. White, 12 N. Y. 538; Moss v. Riddle, 5 Cranch, 351, 3 L. Ed. 123; Griffin v. Cranston, 1 Bosw. 281; Miller v. People, 5 Barb. 203; Van Neste v. Conover, 20 Barb. 549; Gilman v. Reddington, 24 N. Y. 12. 85 Battersby v. Abbott, 9 Cal. 565; Winston v. Wales, 13 Mo. 569; Patterson v. McClanahan, 13 Mo. 507; Van Ness v. Pacard, 2 Pet. 138, 7 L. Ed. 374; People v. Dick, 32 Cal. 213, 34 Cal. 663; Tuttle v. Buck, 41 Barb. 417. 86 Hicks v. Chouteau, 12 Mo. 341. 87 Marine Ins. Co. v. Young, 5 Cranch, 187, 3 L. Ed. 74. 88 Hovey v. Smith, 1 Barb. 372. 89 Western v. Genesee Mut. Ins. Co., 12 N. Y. 258. 90 Cal. Code Civ. Proc., § 1574. 91 Seaman v. Mariani, 1 Cal. 336; Billings v. Billings, 2 Cal. 107, 56 94 change possession under sale or mortgage of chattels was with fraudulent intent.92 The question whether a mortgage given for a greater sum than is due was given in good faith, both for a present indebtedness and to secure future advance to be made, is one of fact for the jury, under proper instructions from the court.93 It is only on proof of a good consideration that the cause goes to the jury on the question of fraud in fact. In an action to obtain chattels purchased at a sale on execution, the questions whether there was an intent to defraud creditors, whether the property was in view of the bidders, whether it was offered in judicious lots, are questions of fact.95 Whether the transfer of the interest of a partner to his copartner was made with intent to defraud creditors, and fraud in the procurement of an entry of land in a contest between two claimants from the United States,97 are questions of fact. Grant: The question what premises are embraced in a grant depending on evidence outside the grant, identity of landmarks referred to, is for the jury.98 Instigation and request are questions of fact." Insurance: Whether circumstances not communicated to the insurer, on application for a policy, were material to the risk, and necessary to be communicated;100 the length of time usual for a vessel to perform a voyage; 101 whether a vessel was lost within the time fixed in the policy;1 whether the acts were done which are relied on as constituting a waiver of defects in the proofs;103 whether erecting additional buildings increases the risk;10 whether keeping a small quantity of tow in a building amounts to using it for storing flax,105 are questions for Am. Dec. 319; Ford v. Chambers, 19 92 Prentiss v. Slack, 1 Hill, 467; Butler v. Van Wyck, 1 Hill, 438; Smith v. Acker, 23 Wend. 653; Stewart v. Slater, 6 Duer, 83; Gardner v. McEwen, 19 N. Y. 123; Groat v. Rees, 20 Barb. 26; compare Edgell v. Hart, 9 N. Y. 213, 59 Am. Dec. 532. 93 Tully v. Harloe, 35 Cal. 302, 95 Am. Dec. 102. 94 Allen v. Cowan, 28 Barb. 99. 95 Bruce v. Westervelt, 2 E. D. Smith, 440. 96 Griffin v. Cranston, 1 Bosw. 281. 97 Waller v. Von Phul, 14 Mo. 81. 98 Frier v. Jackson, 8 Johns. 496. .102 |