is not invalidated because the jury, in addition thereto, find a general verdict embodying a conclusion of law.556 And if the party dissatisfied fails to move for a new trial, the verdict is conclusive on the facts.557 The court, having directed the jury to find a special verdict upon questions submitted in writing to their consideration, may withdraw any of such questions and instruct them that they need not answer. This is purely a matter of discretion, over which the court, on appeal, will not exercise control.558 An objection to the form of a special verdict must be taken before the verdict is received and recorded; otherwise, the objection will not be considered on appeal.559 A judgment for the plaintiff will not be modified upon appeal so as to conform to a special verdict in his favor, if such special verdict is not supported by the complaint, and the proper judgment was entered in conformity to the cause of action stated in the complaint.560 Where a special verdict of a jury is adopted in an equity case by the court, it takes the place of, and is equivalent to, findings by the court. And in order to show such an adoption it is not necessary that the word "adopt" should be used, but it is sufficient if it appears in any way.561

§ 1268a. Construction of special verdict.--All reasonable presumptions will be indulged in favor of the general verdict, and none indulged in favor of the answers to the special interrogatories; if the answers are to control, they must be in irreconcilable conflict with the general verdict. If the answers are themselves antagonistic or inconsistent, they neutralize each other and will be disregarded. The special findings must exclude every theory which will sustain the general verdict, and they are inconsistent only when, as a matter of law, they will authorize a judgment different from that which the general verdict will permit.561

§ 1269. Verdict by stipulation.-A stipulation that a verdict. should be entered in favor of the defendant, saving to the plaintiff the same rights which he would have had in case a jury had

556 Smith v. Ireland, 4 Utah, 187, 7 Pac. 749.

557 Garwood v. Simpson, 8 Cal. 101; Duff v. Fisher, 15 Cal. 380.

558 Taylor v. Ketchum, 5 Robt. 507, 35 How. Pr. 296.

559 Alhambra Water Co. v. RichP. P. F. Vol. I-52

ardson, 72 Cal. 598, 14 Pac. 379. 560 Kullmann V. Greenbaum, 84 Cal. 98, 24 Pac. 49.

561 Morrison v. Stone, 103 Cal. 94, 37 Pac. 142.

561a Antonian v. Southern Pac. Co., 9 Cal. App. 718, 100 Pac. 877.

actually rendered a verdict for the defendant, should be regarded in precisely the same light as a verdict, and be followed by the same legal results."

562

§ 1270. Verdict sustained.-When the jury found the only issues involved in the controversy, an exception to the verdict, that no verdict was found upon the issue presented by the pleadings, will not be sustained.563 Where there are special and general counts in a declaration, and a demurrer is filed which affects only the special counts, and the party goes to trial upon the general issue plea to the general counts, a verdict and judgment so obtained will not be set aside because the demurrer was undisposed of. Objection cannot be taken on a writ of error that the verdict in a trial where there were several issues was that the jury found the "issue" for the plaintiff."

565

§ 1271. Declaring verdict.-When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict; if any juror disagrees, they must be sent out again; but if no disagreement be expressed, and neither party require the jury to be polled, the verdict is complete and the jury discharged from the case. Either party may require. the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict; if any one answer in the negative, the jury must again be sent out.566 Upon the rendition of the verdict, the court orders judgment to be entered up accordingly.

§ 1272. Validity and construction of verdict-Generally.-As a general rule, a party cannot complain of an error which is practically beneficial to him; and a verdict will not be set aside for an error which is in favor of the party excepting to it. Damages are not the prime object in an action of claim and delivery, and a general verdict for the plaintiff in such action will not be set aside because the jury did not find damages. 567 And irregularity

562 Sunol v. Hepburn, 1 Cal. 258. 563 Burritt v. Gibson, 3 Cal. 396. 564 Townsend v. Jennison, 7 How. 706, 12 L. Ed. 880.

565 Laber v. Cooper, 7 Wall. 565, 19 L. Ed. 151.

566 Cal. Code Civ. Proc., § 618. If there should be any good reason the jury should be polled. Hindrey v. Williams, 9 Colo. 371, 12 Pac. 436.

567 Gaines v. White, 1 S. Dak. 434, 47 N. W. 524.

570

of a verdict in such action in failing to find all the facts it should have done will not, under Montana statutes, invalidate the verdict.568 Where the verdict states the facts fully and definitely in reference to all matters at issue between the parties, it will not be disturbed, even in an action for the recovery of money, on the ground that it does not state the amount of the recovery.56 So where the answer admitted the indebtedness and amount thereof, and the only denial was that the debt was not yet due." An answer, "we do not know," or "we think not," is an answer in the negative by the jury.571 A verdict will not be disturbed for an improper remark of the trial judge, unless it is reasonably certain that the interests of the complaining party were prejudiced thereby.572 A verdict cannot be attacked on the ground that it is not supported by the evidence, when the record contains no specifications of the particulars in which the evidence is insufficient to sustain it.573 The objection must be stated with so much of the evidence or other matter as is necessary to explain it, so that the opposite party may be fully advised of the defects. in his evidence.574 In determining the correctness of a verdict, weight should be given the fact that on two previous trials the finding had been the same.575 That a verdict includes the value of property not declared for in the complaint is wholly immaterial where the plaintiff permits to be taken from the verdict a sum largely in excess of the value of such property.576 A verdict cannot be said to be against law, as contrary to the instructions of the court, because inconsistent with the facts as maintained by one party, if the jury might, upon the evidence, have decided. the question of fact contrary to such party, and consistently with the instructions.577 Where the court, upon hearing evidence after the jury have passed upon some of the vital issues, makes findings

568 Miles v. Edsall, 7 Mont. 185, 14 Pac. 701.

569 Knight v. Fisher, 15 Colo. 176, 25 Pac. 78.

570 Josephi v. Mandy Clothing Co., 13 Mont. 195, 33 Pac. 1.

571 Kalina v. Union Pacific Ry., 69 Kan. 172, 76 Pac. 438; Guernsey v. Fulmer, 66 Kan. 767, 71 Pac. 578.

572 Hill v. Corcoran, 15 Colo. 270, 25 Pac. 171.

573 Alpers v. Schammel, 75 Cal. 590, 17 Pac. 708.

574 Holcomb v. Keliher, 3 S. Dak. 497, 54 N. W. 535.

575 Todd v. Demeree, 15 Colo. 88, 24 Pac. 563.

576 Perkins v. Marrs, 15 Colo. 262, 25 Pac. 168. As to reducing amount of verdict, see Patrick etc. Co. v. Skoman, 1 Colo. App. 323, 29 Pac. 21; Phelps v. Cogswell, 70 Cal. 201, 11 Pac. 628.

577 Northern Ry. Co. v. Jordan, 87 Cal. 23, 25 Pac. 273.

upon all of the issues, contrary to the verdict, such action is in effect a setting aside and vacating of the verdict, and it is the duty of the court to order a new trial by jury, and it has no power to proceed to determine the cause without a jury.578

580

§ 1273. Interpretation of verdict.-Verdicts are to have a reasonable intendment, and to receive a reasonable construction. Courts always disregard verbal inaccuracies in a general verdict, and will give judgment thereon if the facts found are sufficient, and the meaning is sufficiently clear.579 It must be intended that the verdict is as comprehensive as the issues, and includes every question of fact at issue. If a special verdict is susceptible of two constructions, that one must be used which will support the general verdict.581 A verdict is good if the title sufficiently identifies the cause in which it is rendered, and the findings of the matter submitted in issue may be ascertained and clearly understood from the wording of it.582 And a party will not be heard to object to a verdict for the first time upon appeal from the judgment, if it is susceptible of a construction which may have a lawful effect relevant to the pleadings.583 A special verdict upon various questions submitted to a jury should be read together, and if the findings upon a particular question be doubtful or obscure, reference may be had to the context for the purpose of ascertaining the true meaning. Findings should be so construed as to avoid a contradiction if it can be reasonably done.584

578 Montgomery v. Sayre, 91 Cal. 206, 27 Pac. 648.

579 Thayer v. Burger, 100 Ind. 262; Thames L. & T. Co. v. Beville, 100 Ind. 309; Jeansch v. Lewis, 1 S. Dak. 609, 48 N. W. 128; Warren v. Southern California Ry. Co. (Cal.), 67 Pac. 1; Drake v. Justice Gold Min. Co., 32 Colo. 259, 75 Pac. 912.

580 Hall v. Zeller, 17 Or. 381, 21 Pac. 192.

581 Grant v. Spokane Tr. Co., 47 Wash. 112, 91 Pac. 553.

582 Kelsey v. Chicago etc. Ry. Co., 1 S. Dak. 80, 45 N. W. 204.

583 Johnson v. Visher, 96 Cal. 310, 31 Pac. 106.

584 Alhambra etc. Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379.

TRIAL BY JURY-FORMS.

§ 1274. General verdict.

[TITLE.]

Form No. 399.

We, the jury in the above entitled action, find for the plaintiff, and assess his damages at . . . dollars [or, find for the defend

ant].

Dated...,

19 ..

O. P., Foreman.

§ 1275. Verdict for defendant on plaintiff's claim and on counterclaim.

[TITLE.]

Form No. 400.

We, the jury in this action, find for the defendant upon the cause of action stated in the complaint, and also find for the defendant upon his counterclaim, and assess his damages thereon at . . . dollars.

Dated

§ 1276. of action.

... "

[TITLE.]

19. .

O. P., Foreman.

Verdict for excess, both parties having proved a cause

Form No. 401.

We, the jury in this action, find for the plaintiff on the cause of action stated in the complaint, and that there is due thereon . . . dollars, and we also find for the defendant on the counterclaim stated in the answer, and that there is due thereon . . . dollars, and we assess the damages of the defendant [or, plaintiff] at the sum of . . . dollars, being the amount of the excess due him upon the above findings.

Dated.

19 ..

O. P., Foreman.

§ 1277. Verdict subject to opinion of the court.

We, the jury in this action, find for the plaintiff, and assess his damages at . . . dollars, [or, find for the defendant], as directed by the court, and subject to the opinion of the court upon the questions of law.