the prevailing party has sustained by reason of the taking or 469 detention of such property. Where there has been a nonsuit in the original action, these questions are open on the trial of an action on the replevin bond.470 474 .473 § 1255. Conclusiveness of verdict. The finding of a jury, or of the court below acting as a jury, upon a question of fact is final and conclusive.471 A verdict found on any fact or title distinctly put in issue is conclusive in another action between. the same parties or their privies in respect of the same fact or title;72 but the fact or title must be material or relevant;" and the court will intend that the verdict settles every question of fact litigated upon the trial, A general rule has been maintained that the verdict of a jury is conclusive upon the question. of fact submitted to them, if there be any evidence to support it.475 A verdict is never conclusive upon immaterial or collateral issues.476 Where there is such overwhelming evidence against the verdict as to justify the conclusion that it was rendered under the influence of passion or prejudice, or bias of some kind, a new trial should be granted, even though there be some conflict.477 469 Cal. Code Civ. Proc., § 627. This section does not apply to a nonsuit. As to form and sufficiency of verdict in replevin, see Johnson v. Fraser, 2 Idaho, 404, 18 Pac. 48; Blackfoot Stock Co. v. Delamue, 3 Idaho, 291, 29 Pac. 97; Quinn v. Parke etc. Machinery Co., 5 Wash. 276, 31 Pac. 866; Cattle Co. V. Slaughter, 6 Utah, 278, 21 Pac. 997; Smith v. Smith, 17 Or. 444, 21 Pac. 439; Corbell v. Childers, 17 Or. 528, 21 Pac. 670; Chandler v. Colcord, 1 Okla. 260, 32 Pac. 330; Kuhlman v. Williams, 1 Okla. 136, 28 Pac. 867; Stewart v. Taylor, 68 Cal. 5, 8 Pac. 605; Ryan v. Fitzgerald, 87 Cal. 345, 25 Pac. 546. 470 Ginaca v. Atwood, 8 Cal. 446. 471 Perry v. Cochran, 1 Cal. 180; Duff v. Fisher, 15 Cal. 380; Hurd v. Atkins, 1 Colo. App. 449, 29 Pac. 528; Woods v. Courtney, 16 Or. 121, 17 Pac. 745. 472 Kidd v. Laird, 15 Cal. 161, 76 Am. Dec. 472. 473 See, as to presumption in favor of correctness of verdict, not clearly designating its precise import, Carpenter v. Simmons, 28 How. Pr. 12. 474 Wolf v. Goodhue Fire Ins. Co., 43 Barb. 400. 475 Noonan v. Hood, 49 Cal. 294; Trenor v. Central Pacific R. R. Co., 50 Cal. 222; Miller v. Lockwood, 32 N. Y. 293; Hyatt v. Trustees of Rondout, 44 Barb. 385; Fleming v. Smith, 44 Barb. 554; Kavanaugh v. Beckwith, 44 Barb. 192; People v. Townsend, 37 Barb. 520; Cothran v. Collins, 29 How. Pr. 155; Decker v. Myers, 31 How. Pr. 372; Lewis v. Blake, 10 Bosw. 198. 476 McDonald v. Bear River etc. W. & Min. Co., 15 Cal. 145. As to qualification of rule as regards verdict manifestly against evidence, see Suydam v. Grand Street etc. R. R. Co., 41 Barb. 375, 17 Abb. Pr. 304; Greer v. Mayor of New York, 1 Abb. Pr. (N. S.) 206. 477 Dickey v. Davis, 39 Cal. 569; § 1256. Directing verdict.-The California law confers express authority upon the courts below to direct a special verdict ;*78 and the court must determine what particular facts the jury shall find specially, and neither party has the right to dictate terms.479 And where special issues are submitted to a jury, they should include all questions of fact raised by the pleadings, and should be separately and distinctly stated.180 If defendant's proof is solely upon a different contract to the one pleaded, and he does not ask permission to amend his answer, the court may disregard his proof and direct verdict for plaintiff.481 In all cases the court may instruct the jury, if they render a general verdict, to find upon particular questions of facts, to be stated in writing.482 Where there is no dispute as to facts, and the law upon these facts declares a transaction fraudulent, it is not a question for the jury. The court in such case may direct the jury how to find, or set aside the verdict, if they find to the contrary. 483 Or where the evidence will not authorize a different verdict, it is proper to instruct the jury as to the verdict which they should find.484 But plaintiff should first be given opportunity to introduce evidence in support of his case and also in rebuttal." 485 It is proper for the court to direct a verdict in all cases where there is no disputed question of fact to be submitted to the jury. In any case where there is no evidence to warrant an adverse verdict, and where the court would feel bound to set aside such verdict if rendered, it is proper for the court to direct a verdict for the party entitled thereto.* It cannot be deter Mason v. Austin, 46 Cal. 387; Sherman v. Mitchell, 46 Cal. 579. See, generally, "New Trials" and "Appeals." 478 Cal. Code Civ. Proc., § 625; Cal. Prac. Act, § 175; Burritt v. Gibson, 3 Cal. 396. 479 American Co. v. Bradford, 27 Cal. 360. 480 Phoenix Water Co. v. Fletcher, 23 Cal. 482. 481 Winchester v. Joslyn, 31 Colo. 220, 102 Am. St. Rep. 30, 72 Pac. 1079. 482 Cal. Code Civ. Proc., § 625. 483 Chenery v. Palmer, 6 Cal. 119, 65 Am. Dec. 493; Neeley v. Southwestern Cotton Seed Oil Co., 13 Okla. 356, 75 Pac. 537, 64 L. R. A. 145; 486 Murray v. Bush, 29 Wash. 662, 70 484 Wilson v. Alcatraz Asphalt Co., 142 Cal. 182, 75 Pac. 787. 485 Mau v. Stoner, 10 Wyo. 125, 67 Pac. 618; Wyo. Rev. Stats., § 3644. 486 Armijo v. New Mexico Town Co., 3 N. Mex. 244 (427), 5 Pae. 709. See, also, Coffin v. Hutchinson, 22 Or. 554, 30 Pac. 424; Haugen v. Chicago etc. R. R. Co., 3 S. Dak. 395, 53 N. W. 769; Longley v. Daly, 1 S. Dak. 257, 46 N. W. 247; Peet v. Dakota Ins. Co., 1 S. Dak. 462, 47 N. W. 532; Martin v. Ward, 69 Cal. 129, 10 Pac. 276; Bowman v. Eppinger, 1 N. Dak. 21, 44 N. W. 1000. mined as a matter of law that undisputed testimony must be accepted by the jury as true.487 Where the evidence is such that it is clearly insufficient to support a verdict in favor of the party against whom the direction is given, the instruction is proper, unless the circumstances of the case indicate that upon another trial the evidence may be materially different, in which case the facts should be submitted to the jury in order that a new trial may be had; but in either case the decision of the trial court will be sustained, unless it clearly appears that its conclusion is wrong upon the facts.488 A court of the United States has authority to direct a jury to find a verdict for a defendant, and it should always do so when it will not permit a verdict for the plaintiff to stand.189 The court may direct the jury to bring in a sealed verdict at the opening of court, in case of an agreement during recess or adjournment for the day, but a final adjournment for the term, by operation of law discharges the jury and renders them incompetent to return a verdict." 490 § 1257. Entry of verdict.-Upon receiving a verdict, an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length, and, where a special verdict is found, either the judgment rendered thereon or the order reserving it for argument or further consideration.491 That will be treated as the verdict which the jury actually bring in, and the court should direct it to be recorded as rendered.492 The court has no right to direct the jury to find a designated verdict. 493 It cannot, in an action at law, enter a verdict contrary to the will of the jury, or substitute its judgment for theirs and assume the power to decide issues of fact once submitted to the jury, or render a judgment contrary to the verdict.494 When a verdict. 487 Harrod v. Latham etc. Co., 77 Kan. 466, 95 Pac. 11. 488 Lacey v. Porter, 103 Cal. 597, 37 Pac. 635. As to when verdict should be directed for plaintiff, see Campbell v. Clay, 4 Colo. App. 551, 36 Pac. 909; Clancy v. Reis, 5 Wash. 371, 31 Pac. 971. When for defendant, see Bassinger v. Spangler, 9 Colo. 175, 10 Pac. 809; Chivington v. Colorado Springs Co., 9 Colo. 597, 14 Pac. 212. 489 Alexander V. Tennessee etc. Min. Co., 3 N. Mex. 173, 3 Pac. 735. 490 Anderson v. Hulet, 4 Colo. App. 448, 36 Pac. 309. 491 Cal. Code Civ. Proc., § 628. See Von Schmidt v. Widber, 99 Cal. 515, 34 Pac. 109. 492 Moody v. McDonald, 4 Cal. 297. 493 Smith v. Shattuck, 12 Or. 362, 7 Pac. 335. 494 Montgomery v. Sayre, 91 Cal. 206, 27 Pac. 648. is rendered and recorded the jury is functus officio. Prior to that time the verdict is in the control of the jury in some respects, but after those events the province of the jury is exhausted.* 495 § 1258. Errors cured.-A defective allegation of a fact may be cured by verdict, but not the absence of an allegation.496 The failure to aver performance is cured by verdict. So in a verified complaint, where a special demand is essential, the error of a general averment of demand is cured by verdict.498 After verdict, defects in substance in the declaration are cured, if the issue joined be such as necessarily required on the trial proof of the facts defectively or imperfectly stated or omitted; and the court will presume that the facts showing the right were proved. 199 Where the complaint contains the substantial averments of a cause of action, though defective in form and certainty, the defect is cured by verdict.500 The verdict does not supply any fact omitted from a pleading, but it establishes every reasonable inference that can be drawn therefrom.501 The doctrine that a defective pleading may be cured by verdict can have no application where there is an entire absence of a material allegation.502 § 1259. General verdict.-A general verdict is that by which a jury pronounces generally upon all or any of the issues, either in favor of the plaintiff or defendant.503 In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict.504 The 495 In re Thompson, 9 Mont. 381, 23 Pac. 933; Morris v. Burkes, 15 Mont. 214, 38 Pac. 1065. 496 Hentsch v. Porter, 10 Cal. 555. 497 Happe v. Stout, 2 Cal. 460. 498 Mills v. Barney, 22 Cal. 240; Jones v. Block, 30 Cal. 227. 499 Stanley v. Whipple, 2 McLean, 35, Fed. Cas. No. 13286. See Garland v. Davis, 4 How. 131, 145, 11 L. Ed. 907; Pearson's Exrs. v. Bank of the Metropolis, 1 Pet. 89, 7 L. Ed. 65. 500 People v. Rains, 23 Cal. 127. See Garner v. Marshall, 9 Cal. 268. As to defective pleading aided or cured by verdict, see School District v. Ross, 4 Colo. App. 493, 36 Pac. 560; Aiken v. Coolidge, 12 Or. 244, 6 Pac. 712; Wild v. Oregon R. R. Co., 21 Or. 159, 27 Pac. 954; Harkness v. McClain, 8 Utah, 52, 29 Pac. 964. 501 Weiner v. Lee Shing, 12 Or. 276, 70 Pac. 111. 502 Richards v. Traveler's Ins. Co., 80 Cal. 505, 22 Pac. 939. See Hazard Powder Co. v. Volger, 3 Wyo. 189, 18 Pac. 636. 503 Cal. Code Civ. Proc., § 624. 504 Cal. Code Civ. Proc., § 625. See, also, Meyers v. Hart, 3 Colo. App. 392, 33 Pac. 647; Thompson v. Gregor, 11 Colo. 531, 19 Pac. 461. right to judgment on special findings is limited to cases where there is an inconsistency between the general verdict and the special findings.505 A general verdiet will include all parties who do not answer separately or demand separate verdicts.500 Its effects will be limited to such issues as necessarily controlled the action of the jury.507 In an action to recover the possession of land, the following verdict: "We, the jury in this case, find a verdict in favor of the plaintiff against the defendants, for the possession of the premises described in the complaint herein, and the sum of one hundred and sixty-five dollars damages," was held substantially a general verdict.508 A general verdict entered on counts of which part are bad is erroneous. But if the good counts set forth a sufficient cause of action it may stand.509 Where the plaintiff sues on two causes of action, but produces no evidence to support the second, a general verdict for the gross amount sued for cannot be sustained.51 § 1260. How authenticated. The verdict of a jury is a matter of record, and copies thereof may be sufficiently authenticated by the certificate of the clerk."1 511 § 1261. Informal verdict.—Where the declaration in an action of assumpsit contained the following counts: 1. On a promissory note; 2. Indebitatus assumpsit, for the hire of chattels; 3. An account stated; 4. Quantum valebat, for the service of chattels; 5. Work and labor, goods sold and delivered, and money lent and advanced; 6. Money had and received; 7. An account stated; 8. A special agreement for the hire of chattels; and the defendant pleaded: a. The general issue; b. Statute of limitations; c. Payment; and the jury found a verdict for "the defendant upon the issue joined, as to the within note of four hundred and fifty-six dollars, and the within account,"-this verdiet, although informal, was sufficient authority to enter a general judgment for defendant.512 When the verdict returned by the jury is in 505 Chicago etc. Ry. v. Morris, 16 Wyo. 308, 93 Pac. 664. 506 Winans v. Christy, 4 Cal. 70, 60 Am. Dec. 597; Ellis v. Jeans, 7 Cal. 409. 507 Id.; McDonald v. Bear River etc. W. & Min. Co., 15 Cal. 145. 508 Hutton v. Reed, 25 Cal. 478. See Leese v. Clark, 28 Cal. 26. 509 Fry v. Bennett, 28 N. Y. 324. 510 Kent v. Abeel, 12 Colo. 547, 21 Pac. 718. 511 Reynolds v. Harris, 8 Cal. 618. 512 Downey v. Hicks, 14 How. 240, 14 L. Ed. 404. |