900
FEDERAL REPORTER,
vol. 43.
to .aver that the defendant had infringed upon the cOlllp1ll>inant's righte continuously since September, 1879. The complainant l;1ad no rights under the patent until September, 1880. The demurrer is overruled. The defendant has 20 days. in which to answer.
GUSPELL L
tI. NORTHERN PAO.
R Co. ·
(oo£rcul,t oourt. D. North Dakota. November 8, 1890.) DBoiIli'r-)bIASURB Oll' DAMAGB&' .
In an action for deceit in misrepresenting the value of land sold, the measure of damages under Code Dak. 5 19.67, (providing that the measure of damages for the breach of an obligation not ari,8ing from contract, except where otherwise is tbe amount whic1:l will compensate for all the detriment proximately causea thereby,) is the loss sustainell by reason of the fraud. Following Smith v. BoUes, 182 U. S. 125, 10 Sup. Ot. Rep. 89; Atwater v. Whiteman, 41 Fed. Rep. 427. " . .
·
S. BAMB-IN8TRUCTIONS.·
In such an action an instruction to the effect that the measure of damages is the difference between the actual valne of the land and its value as represented by the .vendor is reversible error when it cannot be seen by an inspection of the record that. the jury did not follow suoh instruction. 'Aftldavits· of jurors showing that they did not follow tbe erroneous directions of tbe court in arriving at· their verdict are inadmissible on motion for new trial, though offered in support of the verdict.
8. NEW TRIAL-AFFIDAVITS Oll' JURYMEN.
At Law'; On motion for a new trial. This is an action brought to recover damages for deceit in the sale, by the defendant to the plaintiff of 2,240 acres of land situate in the county of Wells in this district. The action was tried in the territorial district court in and for Stutsman county, in' the sixth judicial district, and a. verdict and. judgment were rendered for the plaintiff on the 26th day of Novelllber,J888, for 812,609.58. A motion for a new trial was thereupon made by t:he defendant in said territorial court, which motion was pending on the 2d day of November, 1889,when the state of North Dak9ta wns ndmitted into the Union. A bill of exceptions was settled '!?y t4e jUdge of the court who tried the cause 011 the 30th property in controversy is situate within the day of August, 1889. said sixthjudicial district as it existed under the territorial system, and all of the said district is included within the boundaries of the state of North Dakota. Upon the admission of the state into the Union this action was transferred from the territorial court into this court upon the request of the to section 23, c. 180, (25 St. at Large, 676,) and on the 8th day of October, 1890, the .said motion for a new trial was brought on to be heard before this court. The plaintiff alleges in his complaint, among other things, in substance, that on or about the 1st day ,of ;F'ebrulj-fY, 1883, at Jamestown/in the county of Stutsman, and terrlt()ry of Dakota" the defendant, the NorthemPacific Railroad for a valuable consideration, to-wit, the Company, 801d to thia Bum. of the lands questiop, described as follows, to-wit: Tht)
GLASPELL
NORTHERN PAC. R. 00.
901
north one-half (N. I) of section one, (1,) the south one-half (i) of section thirty-five, (85,) the south one-half (S. I) of section fifteen (15,) the north one-half (N. i) ofsection thirty-one, (31,) and the north half of the south-west quarter, (N. IS. w;t,) and the north one-half of the south-east quarter, (N. I S. E. t,) of section thirty-one, the southwest quarter (S. W. t) of section three, (3,)-a11 of said lands being in township one hundred and forty-five (145) north, range sixty-nine (69) west, of the fifth pdncipal meridian. Also all of section twenty-three, (23,) in township one hundred and forty-five (145) north, range seventy (70) west, of the fifth principal meridian. That said sale was made to plaintiff at Jamestown aforesaid, he then and there acting and being represented by S. L. GIaspe11, a resident of the city of Jamestown, the plaintiff being a at that time of the city of Chicago. That at the time of the sale neither this plaintiff nor the said S. L. GIaspen had been within the limits of said county of Wells, nor had seen nor had any knowledge of the situation, character, or quality of the lands except such as was imparted to them by the defendant and its agents. That at the time the sale took place the lands were covered with snow to such an extent that no examination thereof could be made which would have disclosed their qnality, and that the prairie in the vicinity of the lands was then impassable by reason of the deep snow, and that no railroad was then running trains within a distance of 40 miles therefrom. That for the purpose of inducing plaintiff to make the purchase of said lands, and prior to said purchase, defendant, through its agents, made certain representations to plaintiff as to the character, quality, and situation of said lands, the number of settlers in this vicinity, and as to its adaptability to general farming purposes, as follows: That all of said lands were adapted to general farming purposes; that the soil thereof consisted of black loam soil, from 15 inches to 2 feet in depth. with clay subsoil; that it was all free from stones, sand, and gravel. except a few scattering surface stones; that it was of gentle rolling surface, and free from sloughs or water-holes; that part of it contained some good meadow land; that township 145, range 69, and township 145, range 70, in which said lands were situated, had been surveyed by the United States government;and that the even-numbered sections thereon, known as "Government Lands," were thickly settled by actual settlers residing upon a,nd cultivating their lands. That, relying wholly upon said representations of defendant and its agents, and without having other knowlege of thEl character, quality, or situation of said lands, plaintiff purchased said lands of defendant in full faith and confidence in the truth of said representations so made to him. That the agents of the company who made said representations had authority to sell said lands and make said representations from the defendant. ,That said lands were not as represented to him. That they failed to correspond with the representations made to him as hereinbefore set forth. That none of said lands were, at thE! date of the purchase and sale. or at any time, adapted to general farming purposes or any purpose of farming. That the soil thereon did not then, nor at any time, cOllsist of black loam surface soil from 15 inches
902
FEPERAL,REPORTER, v01.
43.
with a cla;, aubsoil;.but, on the contrary; the black loaxn J:lurfPice soil on saiQ land ;nowhere exceeds a depth of 6 inches,. and tbatbutJtlsn1all,part of said, land was or is covered .with nny black loam whll.tsolilver. That said lB'rids.were'·not free from stones, sand. or gravel, bu.t, ,.()u the contrary, are and ,were:s1most entirely composed of stones, and ·grave]; both upop. ,and· under the surface, to such :m ex tent as to 'make it unfit for anypnrpOse of Janning or agriculture, and the greater ;part'ofeaiti lands were audiareentirely' unproductive of vegetation. That it was not and is not ofgentle rolling surfMe, and free from waterholes andslol1ghs, but btokenand h,Bly, and containing many sloughs That. townships ,145, range 69, and 145. range 70, bad. notbeeu then surveyedby.the United States government, and are not yet flO surveyed. That, tlie even-n umbered sections in said townshipa,kuown. as I'Government :Lands;" were not then, and are not now, thickly:settled by actual settlers residing upon and cultivating their lands, entirely uninhabited and uncultivated. but" on the contrary, the Thnt said lands, at the timeot the;sale,had they been of the quality, character, and situation as representedalQresaid by the defendant, would have been ,of the actual cash 'value of814,000j but the same were not then,uor.,atll.ny time, of,any:value whatever, but were . and are entirely worthless, and the sustained damage by reason of such false representations aforesaid in the sum of $14,000, and dem:mds judgmentforthat amount, withoosts. The defendant interposes a general denial. .. ,· . Evidence was adduced on the parts oUhe plaintiff and defendant tending to prove the allegations in the complaint and answer. The evidence on the part ofthe1plaintifftenda to show that the lands were of no actual value at the time of the sale,and that if they had been as represented they would have been worth' from 85 to 87 per acre. On the part of the defendant one,witness, John J. Niehole, claims to have examined the land described; ,says thutit was,probably, worth about$3 per acre at the time oithe sale. Another witness, Atkinson. on the part of the defendthe land in the spring of 1882, and ant, testified that he had had made memoranda, showing the character and quality of these lands; in company with John J. Nichols. He testified, among other things, supstRntiallyas, follows: Whim did you inspect qr examine these lands? Answer. In the spring of, Q. In company' with any other person than YOllrsplf? A. Mr. :N'ichols,-'-John J. Nichols. Q·. And had yOll made any memoranda shoWing the character and quality of these lands as the result of that examination i'A. We did; yes, sir. Q. You spoke of having made some selectionsin theee townships for yourself. Ho,,· many sections had you selected for yourself from these townships? A. I selected 16 sections for the com· pany.There was Mr. Thompso.n.Mr. Burdick. Mr··Smith· .Mr. Decker, Mr. De, Saint, and Mr. Hench, all of Davenport, were interested. with me in these. . I had selected section 11; township' 145. range 69. and balf of section 1. township 145. range69.Q. Did you advise Mr. Glaspell during the course oj! any of theso conversations· that you had selected these lands from these townsllips? A. I did; yes, sir. We wete talking about them. Q. Have you
GLASl'ELL tI. NORTHERNPACo R. CO.
903
examined at any time the north half of section 1 in township 145. range 69? A. Yes. sir; we did. Q.State to the jury the character and quality of the soil upon that section. and it.'! general contour and configuration. A. It is blufl'y. and it is cut up; that ia, the Pipestone. I can't say whether a branch of the Pipestone touches a corner of'the section; but it lays on a bluff something like this bluff here. north of the town. the south part of the section I purchased. But the north part was too blufIy to suit me. Q. In any of the conversations which you had with Mr. Glasppll. about which you have testified, do yOll remember whether you said anything to him in rpgard to this coulterunning through the north half of the section? A. It wasn't a coulee.. The north half of the section lies almost directly on the bluff. and the south half on the flat. Q. Did you advise Mr. Glaspell of that? A. I did. Q. What reply did he make. if any, to the information you gave him of that? A. I don't remember anything. I mentioned once that I thought that if the boom continued I might wantto buy that if it wasn't bOllght. as I had the other half. and as it was lying near Sykeston. if it wasn't taken up. Q. Describe the half of section 35 in the Same township and range. A. My remembrance is of that section that the surface is a good deal broken. The land. I think. is not hilly. but is broken. as we found it over the prairie some places. especially near the coteaux. 01' where we found the soil blown off. I think there was a good deal of such land as that. and thert! was parts that had the appearance of tough soil. Our examination was In April. and we couldn't judge of the depth of the soil. but I jUdged that from the grass. Q. South half of section 15? A. Ithink that is better. But it is-Ithink there was a coulee r:unning through that that I objected to. Q. About the character andquallty of the soil on this land? A. The most of it I would juLlgefroJIl the wowth of the grass to 'be very good. I would take the soU to be'very good· upon most of section 15.r remember particularly in the neighborhood there I\ra....,. "Mr. Nickeus. No. don't give us anything around in the neighborho()d. "A. The north half of section 31. and the north half of the north-east quarter. and north half of the south-past quarter of section 31 of the same township and range. There was a part of that section. if 1 remember ri.:htly. was very stony. I can't remember just what part it was. I think there was part of it. but I am not positive.. Q·. Can you describe' the character and quality of the north-wpst quarter of sel,tion 3 of the same township and range? I believe there is a coulee running up in that, from the Pipestone; that is. in I45-69? Q. Yes. sir. A. I think there is a coul2e running up. Quite a ravine rUnlting up in that section that breaks it badly. Q. Dpscribe the character and quality of sf'ction 23. 145-70. That was a tolerably level section; but if I remember right. from the gravel and grass I thought that the soil was thin on that, and I think there werll a good many stones on it also. Q. State a little more fully what experience yOll had in dealing in lands in this and adjoining counties. and what acquaintance yOll had with their value in the early part of the year 1883. A. Well. I had been buying anLl selling some lands. and had hef'n farming to some extent, and looking at lands considerable. Q. What was the vaille of the lands per acre concerning thechar.acter and quality of which you have just testified in the month of February. I883!? A. Well. I cannot put a valuation on them. Our lands in that neighborhood we were holding"Mr. Nickeus. Objected to as irrelevant. incompetent. and immaterial. "A. Well. I couldn't say just what suchlantls were worth. Q. Supposing that all of sailllands were adapted to geneoral farming purposes; that the'soil thereof consisted of black loam surface soil; that it was all free from stones, sand. and gravel, except a few scattering sut'face stonps; and that it was gently rolllDgsurface. and ·free from sloughs or water·holes, and that;"al'tof
904
it contained some good meadow land; supposing all of these things to have been troe,-what would have been Its value pel' acre ill the month of Febl'Uary. 188S? A. I would call that pretty good land. Such land as that would soit me. I would say that it was worth from six to Beven dollars an acre 10-
(Jated there. It
The l.and was principally paid for in preferred stock of the Northern Pacific Railroad Company. S.L. Glaapell and E. W. Camp, for plaintiff. John a. Bullitt, Ball Smith, and John. S. Watson, for defendant. THOMAS, J., (after stating the fact8 a8 above.) The bill of exceptions states that the court charged the jury as to the measure of damages that ifth'ey found for the plaintiff it must be in a sum equal to the differencebetween the actual value of the lands and the value of the said lands would have beel! had they been as represented at the time of The defendant excepted to this instruction, and now contends that it is erroneous, and was prejudicial to the. defendant. Did, the court give to the jury the correct rule for the measurement of damages as applicable to the facts of this case? The action is for the recovery ofdamages resulting to plaintiff frorn alleged false and fraudulent The lands were wild and uncultivated, and at the time of the sale there were only a few /jettlers, if any, in the vicinity where this land was situated. In an action to recover damages which the plaintiff· had suffered by reason of the purchase of stock in a corporation which he was induced to purchase on the faith of false and fraudulen.t made to him by the defendant, the supreme court of the in Smith v. B.olle8, 132· U. S. 125, 10 Sup. Ct. Rep. 39, held,that the measure of damages is the loss which the plaintiff slistained by reason of such representations, such as the amount which he paid out, and interest, and all outlays legitimately attributable to the defendant's fraudulent conduct, but it does not include the expected fruits of an unrealized speculation. The ;rule thus enunciated by the supreme court is binding on this cO)lrt if applicable to the facts of this case. Counsel for the plaintiff contenp.s that the rule laid down in Smith v. BoUe8, 8upra, applies only to -the purchase of personal property of a speculative character, and that it does not apply to the purchase of land induced byftaud, and refers to Horne v. Walton, 117 Ill. 130, 141,7 N. E. Rep. 103, which is one of the cases cited by Chief Justicfl FULLER in Smith. v. Bolle8. on page 130 of the opinion. In that case the supreme court of Illinois states that "where the sale of land is made by false and fraudulent representations as to its value, quality, or condition, the measure of damages in any action by the purchaser is the difference be,tween the actual value of the land and its value as represented to be at the time of the sale." But that question w_as not involved in the case, a:nd it was unnecessary to give the rUle of damages on the sale of land induced by fraud. It in that case that the party procured a loan of $2,000 through fraud and deceit upon representations that the security was good, the security being land, when as a matter of filet it
GLASPELL t7. NORTHERN PAC. R. CO.
905
was worthless. The court held that the actual loss to the party was the amount he had borrowed, with interest thereon while he was kept out of the possession of it. The court say, on page 135 of the opinion. "We think the true measure of damages in this case was the amount of such loss, to-wit, $2,000, and interest." In the opinion in Smith v. Bolles is cited also the case of (Jrater v. Binninger, 33 N. J. Law, 513, and it will be found in that case that the New Jersey court laid down an entirely different rule as to the measure of damages on the sale of lands induced by fraud. Courts have sometimes made a distinction as to the rule of damages in the sale of personal property and real property when effected or induced by fraud and false representations, but the supreme court ofthe United States, in Smith v. Bolles, seem to have laid down a rule applicable to the measure of damages in the sale of both classes of property coming within the line of facts applicable to that case. Judge SHIRAS has applied this rule in the case of the sale of pine lands, in.ducedby false and fraudulent representations. Atwater v. Whiteman, 41 Fed. Rep. 427. The statute of this state, (section 1967,) which was in force also in the territory of Dakota at the time of the trial of this action, and for a long time prior thereto, is declaratory of the common-law rule as to the measure of damages as enunciated, explained, and applied in Smith ,v. Bolles. It reads as follows: "For a breach of an obligation. not arising from contract, the measure of damages. except where otherwise expressly provided by this Code. is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." 'J.'he latter part of the section "whether it could have been anticipated or not".is new, but as there is no question f)f remote damages in this case it is not necessary to attempt to define the meaning of these words. The, balance of the section, as I have stated, is declaratory of the common law. Fairbanks v. Williams, 58 Cal. 241,242; 2 Greenl. Ev. § 256; Walrath v. Redfield, 11 Barb. 368-371. Upon this statute and the cases of Smith v. Bolles and Atwater v. Whiteman, supra, I am of the opinion that the court, upon the trial of this action, should have instrnCted the jury that if they found for the plaintiff upon the other issues that as to the measure of damages they should find the cash value of the land in the condition it actually was at the time of the sale, and deduct such value from the sum of money invested by the plaintiff in the land, and that difference, with interest added, in the. discretion of the jury, would be the proper amount which the plaintiff was entitled to recover. It follows that the instruction given by the court as to the measure of damages was erroneous, for which error a new trial must be granted, unless it appears that the error was harmless, and worked no injury to the defendant. It is apparent that the case was tried by hoth parties. upon the theory that the rule for the measure of damages as given by the court was the correct rule, and it mnst be presumed that the jury followed the instructions QUhe court, and applied the rule given in making up and return-
906
vol. 48.
iug their: verdict. The jury were the judges of the'credibilitr of the witness8s and of the weight of the evidence. They were instructed in if'they found for the plaintiff they should ·find the actual value bfitbe:propertyat the time of the sale,and. also that they should ·find whatthavalue would have been if it had been as represented, and the diffetenCelwould. be the correct measure of damages; The evidence tendeduto show on the' part of the plaintiff that the lands were of no value whatever, but thatthey.wouldhave been worth from $5 to $7 per acre.jf they bad been as represented.· The evidence on the part of the the. witness Atkinson, was to the effect that they wereofsoin6'value, or; in other words, the jury were at liberty to find from :hisevidence that the lands were of some value. The witness Nichols: testified ,that they were worth about $3 deteilmine froIh·the evidence or from therei:iord whether thejury adopted the evidence; 9f the defendant's witnesses as to the ,actual value at the thne 'of ,the: :sale, or whether they adopted the theory of the plaintiff's witnesses, that ,they were of no value whatever? Can the. :court legitimately'find from the evidence, or· from. the record. sent to this court, whether the Jury adopted' the theory of defendant's witnesses, and placed ,the' IUlt)la1 :ofthese lands al$3 per' acre at the time of the sale, and adopted the theory of plaintiff's witnesses that .they. would have .been they .had that. the highest .worth pu.Qf:ld :.by, plaintiff's witnesse!3...uponsaid .lancls.iftbey. had been 'as allowed the plaintiff the difference of.$4 per acre, and interest thereon,,01''1vhetherthe jur,adopted tHe theory tbat the Jands were of no value lit the time of the sale, and found that they $4 per acre if they had ooen:as represented, a sumlbwet:tban any of plaintiff's witnesses had placed on' tHe land, and tJ,dded to this stUD' of $4 per acre? The result. or' the amount of the verdibf ltdtild have been: the same in 'either case;" J think it clear that this',bottri"eannotdetermine that question from the evidence or the record ndw be't'dre it. It must go outside of the record, if at all, to dere,rmineoDwhatbasis the jury figured,'or what rl1leof calculation they resorteq'tojn their verdict. It would'seem that the Jury would reaSonably infer' from the comparison of all the evidence that the lands! af'thtl'time of the sale were of some vtilue. It is notorious that theland$:OfJhe Northern Cornpany were sought after and 'teadily sold in the market at and' prior to that time at reasonablepnces.' It is possible also that if the case had been tried upon the corfect'theory as to the measure damages; the value of the preferredstockw'itb'which the lands in question were principally paid for of inquiry on the trial, or may upon a new trial into for the purpose of ascertaining the loss sustaimid by the plaintiff. It is impossible for this court to say, from all the evidence, thnt1jt',*¥dict upon a new trial will be the same, of substantially the same·. "Iii' :Atwater v. Whiteman, tmpra, the court the verdict, and new trial,l1btwithstanding the jury had been erroneously'irlstitucted as' to the measure of damages) for the reason that
of
GLABPELL ".
R.':CO.
907
verdict, in addition to the general verdict, had been fOUhd, by the jury. On page 428 of the opinion Judge SHIRAS says: "The general verdict was as follows: · We. the jury, find a verdict for the plaintiff for with interest atUle rate of 7 cent. from November 15. 1882. to January 7, 1890, amounting to $2,417.90, which, added to the last-named amount, makes a total of $1',,342,50,' In answer to specific qUI'Stions submitted the jury found that the fair cash value of the land at the time of the sale was $1.25 per acre, and that if the land had, at the time of the sal'e, been equal in quality and value to whatdefendant represented it t,o be, the value thereof would have been $11,598.13. The u1'ldisputed evidence shows th:lt there was invested in the land the suIJ? of $6.964. belonging to the plaintiff. Deduct from this amount the value of the land at the rate of $1.25 per acre, as found by the jury, and we get the exact sum found by the jury in thegflneral vel'dict in the amount of damages, to-wit. $4,924.62.lt is thereforI" clear, beyond question, that the jury, in estimating the damages, in fact C8niedout the role laid down in Smith v. Bulles." There are no' facts on the face of the record presented to this coort in the case, at bar that would enable it to say that the jury in estimating the damages in effect carried out the rule laid down in Smith v. Bolles, or reached substantially the same result they might have reached if that rule hal,! been given to them by the court. The plaintiff' claims that there was no prejudicial error in the giving of the instruction, for the reasonthnt the jury in fact only allowed the purchase money, and interest, and that affidavits of jurors are admissible to show this fact to sustain the verdict, and in support of his contention therein produced alid read upon the hearing of the motion for a new trial in tbis court the following. affidavifil'signed by eight of the. jurors: "State()f NU1'th Dakota, Oounty uf Stu18man-ss. "M. W. Wright, P. V. Fellows, J. H. Sl'ars, and Joseph Stine, being each duly sworn, deposes and says, each for himsl'll. that he was one o.f the jurors in the trial of the above-entitled action, in which a verdict was ren'lered in the district court of the then terrilory of Dakota, in the county of Stutsman, on the 24th day of Novemher, A. D. 18ti8, and in arriving at said verdict the juryestitnated the land sold by defendant to plaintiff to be Of no value, and that plairltiff paid therl'for the slim of or $4 per acre. for 2,240 acres. The sale was made on or about March 6th. l8ti3. 'fhey considered that the land would have u6l'n worth, if ithad heen as represented, the sum of $4 per acre, and that plaintiff had lost by the transaction the price he paid, with interest.. It wastbe intention or aim of the jury to render a verdict for the plainti1f equal to tihe alllount of money which he had paid to defendant, with interest at 7% per annum." "State of North Dakota, Oounty of Stutsman-ss. "William Harselew, U. M. Clayton, A. M·.Davis, and Charles Riemenschneider. being first sworn, each for himsl'lf deposes and says that he was one of the jurors in the trial of the above-entitled action in the district court of the then territory of Dakota, county of Stutsman, in which a verdict was rendered on the 24th day of November, 1888. In rt'aching such verdict the jury estimated the land sold plaintiff by defendant to be wOl'thlessand of no value, and that plaintiff paid therefor the sum of $8,96Q l;ln oraboutMarch We considered that if the land had been as represented that it of the value of $8,960, and that plaintiff had lost, byreasol1' the sum paid, with interest at seven pill' cent. per annum."
908
FEDERAL REPORTER ,
And'in support of these affidavits of the jurors they also read the following affidavits: "State oj' NorthDakota, Oounty of Stutsman-ss. "Theodore F · .Braneb, beingtirst duly sworn, deposes and says that he is the clerk of the district court for Stutsman county, North DaKota; that at the November, 1888, term he was a bailift in said court, and WaS present in said court during the trial of the case of Albert H. Glaspell vs.Northe1·n Pacifie Rail1'oad Oompan;'I, and was one of the witnesses in said action, and testified in regard 'tOll. survey and examination of tbA lands (2,240 acres) invol ved in said action made by himself; that he was tlL" bailiff in charge of the juryiiJ. saidactiotl during their deliberations over'tbeir verdict; that said jury returnOOil sf'aled verdict into court. about eleven (11) o'clock P. lIf.; that immediatelyafter said jury left the jury-room thisaffiant found therein a paper upon which a calcnlation of interest had been made upon a principal sum 01'$8,960, amonnting in all to $12,545;4o/beinE!' the amount of the verdiqt in said action; that at the same time this affiant returned with said paper into the courtroom, and made the statement to S. L. GJaspell.;'.md E. W. Camp that he could tell wliat the verdict would be. Affiant found said paper on the table used by said juryin arriying at their verdict, and there was no other paper in said room with figures thereon or calculations of any kind." "State of North Dakota, Ootmty of Stutsman-ss. W. Camp, being first q.nly sworn, says he was one of the attorneys for plaintiff in the action mentioned in foregoing affidavit of Theodore F. Branch. , Affiant, with others, waited in the court-room till after the· jury returned a sealed, verdict. Aftel' the verdict bad been agreed upon, and the. jury had left the jury-room, said Brancb went into the juryroom and ,soon after returned: to. the court-room, bolding in bis hand. a piece of paper; which he seemed tobil examining. Branch said that he would like to make a bet that he could guess within five dollars of the amount of the verdict. To the best of affiant's recOllection affiant soon after saw the said paper and examined it, and that it contained a calculation of interest. Affiant does not recollect the sums and amounts, but recollects that the verdict read the next day tallied with the calculations on the paper." "Btate 0/ N01'th Dakota, Oounty of Stutsman-ss. "S. L. Glaspell, being first duly sworn, says that he was one of the attorneys for the pll\intiff In the trial of the above-e,ntitled action; that be saw the papel' referred to in the above affidavit within five minutes of the time the said jury lef,t tbe jury-room, and returned their verdict, sealed, to the clerk; that he immediately telegraphed the plaintiff, who had previously ·left the city, the verdict. and based the sum upon the ligures in said paper, and he had no other knowledge or information of the verdict than was disclose.d by said paper. The'same contained a calculation of interest in the sum of $8,960, at 7% interest, to the date of the verdict. The figures telegraphed by affiant as the verdict in said case was thA exact amount as afterwards sho"'n by the verdict when opened in court. Affiant had noctmversation with any juror prior to the opening of said verdict in court as to the amount thereof, and had no knOWledge or information of the amol1ut thereof save as was disclosed by said
.
These .affidaVits 'were read SUbject to the objection of the Are the$e affidaVits admissible for the purpose claimed,? The material part of the of Branch is that "said jury returned the verdict into coutt1l,bou}ll o'clock p, H.; that immediately after said jury left
GLASPELL 11. NORTHERN PAC. R. CO.
909
the jury-room this affiant found. therein a paper upon which a calcula.. tion of interest had been made, upon a principal sum of 88,960, amounting in all to $12,545.43, being the amount of the verdict in said action;" and that he communicated these facts to Camp and Glaspell; "that affiant found said paper on the table used by said jury in arriving at their verdict, and there was no other paper in said room with figures thereon or calculations of any kind." The effect of the affidavits of Camp and Glaspell is that they saw the paper immediately after as shown to them by Branch...Giving full effect to these affidavits, the most they show is that the jury figured from a principal sum of $8,960, at 7 per cent. interest, and reached the sum of $12,545.43, being the amount orthe verdict. If the jury had found the actual value of the land to be $3 per acre, and the value as represented at $7 per acre. the same result would follow as above suggested. We mllst therefore go to these affidavits of the jurors to sustain this verdict, if at all. Are these affidavits of jurors admissible to show on what grounds, or by what process of reasoning, the jury found and rendered their verdict? Can the plaintiff show by these affidavits that the jury clisregarded the instructions of the court, and the theory on which the case was tried, in respect to the measure of damages, and that they adopted the correct rule, and gave the verdict for the loss theplaintiff had sustained by reason of the fraud? . This is the proposition presented, and I have been unable to find any well"considered authority to sustain it. Up,on the grounds of public policy, the (lourts. have almost universally agreed upon a rule that no affidavit, deposition. or sworn statement of a juror shall be received to impeach the verdict or to explain it, or show on what grounds it was rendered. Thomp. & M. Juries, § 440, and cases there cited; Id. § 451; Hudson v. State, 9 Yerg. 408; Larkins v. Tarter. 3 Sneed, 681. 2 Thomp. Trials, § 2627, and cases cited. It has' been held in Massachusetts that when a jury have returned into court with their verdict, before they are discharged, and while' they are yet a jury, it is competent for the court to interrogate them as to grounds of their finding if there is more than one distinct ground on which the verdict may be given. Parrott v. Tlu1cher, 9 Pick. 426; Biggs v. Barry, 2 Curt. 259. I apprehend that these courts would not extend the rule so as to admit the affidavits of jurors as to the grounds on which the verdict was rendered, even if .all the jurors. had made and joined in the affidavits, especially after they had separated and ceased to become ajury in the case. In Roberts v. Hughe8,7Mees. & W.399, the English court of exchequer held that the rule does not exclude jurymen from swearing to what took place in open court, but only to what took place in their private room, or as to the grounds on which they found their verdict. While the testimony of the jurors will not be received to impeach their verdict, it will be received to sustain the verdict when assailed; This rule is invoked generally and almost universally when the verdict is assailed on account of alleged misconduct of jurors, and it is not only adopted in the furtherance of justice, but to vindicate tl)e jurors themselves. Thomp. & M. Juries, § 446; Wright v. Telegraph 00.,20 Iowa, 195; HaU v. Robison, 25 Iowa, 91; Proft'o
910
'n:DERAL' REroRtrER,
vol; 43. '.,
Pac. Rep. 172,'1 ,; .,:. . v. Williamt,'63,N.Y.361,andHodghi1'l8v. Mead, (N. Y.}2S ;N'. E.,Rep. 559, are relied on by plaintiff to support his contention:tbat the affidavits of the jurors',are shstain the verdiet; but in; bot!i: of these cases {the facts are materiaily different from the caseiat In Dalrymple v.Willitlms the foreman announced as the verdict :of the jury a general verdict against both defendants. It was claimed that the real verdict· 88 agooedupon was in favor of Williams and against: the other dettmdantj and the affidavits of the jurors stating foreman had made a mistake in anthese facts,. rand 'the fact nO'!lllcing theverdiot in court, were'admitterL . The affidavits were admitted simply to correct a mistake made in open court, and not to explain or give the grounds on which the 'verdict was based. On page 365 of the opinion Mr. Justice ALLEN I speaking for the court, refers to Jackson v. Diclcen8on, 15 Johns. 309, and :toRoberta v. Hughes,8Wpra., with approval. He,says: ' , "In JackSOnv. Dickenson the:amrlavits of the jurors were held admissible to show that:ll1mistake had been madeln'takingthp,ir verdict, and that it was 6ntirety'wfferent frolDiwhat was intended. The court draws 3 distinc· tion betwe:en,w"at transpires while thejur)' are deliberating on their verdict and What place in open returninl/: thl'ir veJ;dict, holding the statemantso,f jllfl)rS admissible ast,o the hitter. but not 8S to the former. Rob· ertsv. HHghes,7 Mees. &I W. 899.1s1ike the 'last case quoted. The allidavits of the Jnrots Were received as tow11at. took place in open court on the delivery of the to correct it." ,
Jury,§' 408', :and cases cited jiPeOple'V. Hunt, 59 -Cab4S0-432j People
,InHodgldns v. Mead, supra, for the of commissi'onswas pu.r!)hasers, bu,t question was . 9f the ?pini9P Ju:stice PECKHAM,
was I\naction brought by a realcontended· thllt. the payment of the contract by the as to the .., On page 559 for the court!' says:
!,"The answerset.11P a contr/lct between the parties by which' theplainti:fl' was to claim and be entitled to no commissiqns8xcept upon the Perforrllsnce by the' pioposed. purchasers pf the· pl'opertyof the. special contract of,slile entered fntl) between them and tlll\ defl'ndant,alld the answer alleged failure bY'thepl'oposed pUl'chasers,andthaton ac'couil't thereonheplain. till had not eatlledhis commissions. This was thl' sole 'question at iss lie between the pat'tie5, and it, was assumed and conceded ,that. if the plaintiff was entitled to a verdict at /!oIl, it was .forthe 1 cent·. llPQ,n$t:!O,OOO, with intime it was due. The charge of the judge to the jury was upon'that'point, and he stated ir so many that, if the entitled to a yt-rdict, he must ...r his \lponthepurchase 1I1ilountillg in all to thesuUJof $848.;The judge further sa.Id':-.·Now.,ycllli'have,a singleqllestionof to decille/whether you bl'>lieve the plaintiff, or Sergeant, and Melmade on the day of find arrangement JDaqe ;that the comJIlissio!19f,plaintiff was. theli yilur yerdict will be 'fo'r the defendant, lleQI,L'lsethe ('ondi· 'Mon With. on the dther hand, 'thEll'e condition. itisadmittt'd here that the plaintiff was employed, lI!id'thilt: he found a purchaser, and that,the plaintiff would be entitled to a verdlut.!1' '
IN RE DEPRIEST.
The precise amount of such verdict hadalreltd'Y beeb·· by. the court, and there was no dispute about it. It was cori6eded that the amount· of the' verdict, if fortha plaintiff, must, be. l' per cent. upon the $80,000, with interest.. It was clear beyond dispute that theanlOunt must be the same upon another trial. The· am'dunt was really agreed upon, ,but the foreman neglected to hand the amount to the court in the sealed'verdict. The case was decided onthe principle enunciated in the case .of Dalrymple v. Williams, 81tpra. The offidavits were aLi missible to correct a mistake made in open court in not announcing the actual verdict agreed upon by thejury,on the principle 'laid down in Jack8onV. Dickenaanand Roberts v. Hughe8, aupra. It was upon this principle that the court allowed the verdict to be amended in Burlingame v. Railroad, 23 FedrRep. 706. In my opinion the affidavitsofallthe jurors would not hnvem-en admissibletd sustain this verdict·, much less the affidavits of eight :of thejurors,whoattempted to speak for .the entire jury. The objection ofthe defendant to· the admissibility of the affidavits is therefore sustained. His claimed' by the attorney for the plaintiff thM it was admitted u pan the argument in this courtthatthe land was worthleSs, and, that being so, it necessarily follows that the jury mustha\re adopted that theory. I do not understand that defendant's attorhey; made sobr,oad an admission, .but if he· did it does not follow that the jury' adopted that theory as thei basis of their calculationsillviaw of the evidel'l'ce. It follows that for ,the reasons hereinbefore stated a'llew trial .must be granted,and· it ·is accordingly ltia unnecessary'to no'ticethe·othel assignments oferroi'. ' I'",
1'11.
re DEPRIEST et 01.
(OtrouCt court, 'E. D. Viromia. OctoberS1, 1890.) L ELBO'l'IOIU ANDVOTlIlRS-SurERVISORS-AcCESS TO RlIlGI8'l'RATION BOOK!!. .' Rev. Bt. U. B. § 2026, provides that .the chief supervisor of "shall re-
qUire of the supervisors of elections, when necessary, lists' of the persons' who may register and vote in their respeotive voting precinctS. II . Section 2016 provides ,that the supervI.llors of elections. when thus required .by the cllief supervisor, shall make the lists above· mentioned,' and verify the same. Held that, in .the case of an appropching election for melJ!.bers of congress, the supervisors were'entitled to accesll 1;0 the registration books of. their voting ,precillcts,and h34 a right not ii:llerely to the names that had just been registered, but ·toinspection of the entire :registration books. .
2.
'A registrar who deniestbe supervisors access to the registration boo1t8, or ohst1'uetsthem in makinlt a copy,: commits an offen!le within section 55!m; proViding Person wbo. obstr.ucts or binders the supervisors of election in .the perfOr!DIloJice of any duty required ot them shall be liable to Instant arrest aDd impri&and fine. ..· . : . .,
.....()BSTRUCTION BY RlilGISTRAR..
' .
At.Law.·;. , In the matter ofClinton Depriest, E'upervisor of elections, andiltobert TaylQr" registrar of elections. in one of the voting. precincuiof the city
