#### Solomon D. Moss, plaintiff and appellant, *vs.*Francis Priest, defendant and respondent.

1. The rendering of a general verdict hy a jury, and its reception by the court without objection, either by the judge or the parties, is good, notwithstanding .the failure of.such jury to find upon certain special questions of fact, upon which the court, in the course of its charge, directed them to find.

2. A party by not objecting on the trial of the issues in an action to the recep- " tion of a general verdict'of "a jury Without their written answers to particular questions of fact submitted to them by the court at the same time, waives any right .of .objection to such verdict. . And the court, by permitting such general verdict to be received,, without any answer, but an oral one, by the .foreman of ‘siich jury, "to such'particular questions, must be considered to -have ■ withdrawn the Cpnsideration Of such questions from them and left the case" to stand on the general verdict alone, •

3. Where in such a case an application is made by either party to have tho answers as-actually given by1 the foreman inserted in the record, the adverse party, if he:has done ho act to waive the objection to the mode of answering as not being in writing, may show that the. answers- actually given" by" the foreman were no't those which the jury intended. Any amendment, if allowed, "should bp only to conform the whole finding of the jury, including the. general verdict, to the aúswefá intended, and not to those erroneously given by the foreman. ■

(Before Robertson and Monell, JJ.)

Heard March 28,1863;

decided April 18, 1863.

-This was an appeal" from an order amending a verdict.

The action was tried before one of the justices of the court and a jury. At the close of the evidence the presiding justice directed srich jury to bring in a general verdict and also to answer, in writing, certain written questions presented to them by him, affirmatively or negatively, according to their opinion as'to how'they should be answered from thé-evidence. -

*633The jury rendered a general verdict in favor of the plaintiff, but their foreman, when called upon by the clerk of the court, for their answers to such particular written questions, through some misunderstanding, answered all of them orally in the affirmative, but no entry was made in the minutes respecting them as such answers.

The defendant then moved at special term to correct the verdict by directing the answers so given to the questions to be entered upon the minutes. A statement of some of the jurors was produced upon the motion, by- which it appeared that no written answers to the questions had been made by them ; that the oral answers actually given were in the affirmative.; but that to two of such' written questions the jury intended to have answered in the negative.

The motion was granted, and the answers actually given ordered to be inserted in the minutes. From this order the plaintiff appealed.

*S. P.*Nash, for the plaintiff, appellant.

*F. Bryan,*for the defendant, respondent.

By the Court, Robertson, J.

The Code of Procedure provides (§ 261) that the court may in all cases instruct the jury if they render a general verdict, to find upon particular questions of fact *to he stated in writing,*and may direct *a written finding*thereon, which special finding *shall he filed*with the clerk and entered on the minutes.

In the present case questions of fact were stated in writing by the presiding justice, and the jury were directed to answer them in the affirmative or negative as under the evidence they thought proper. They took with them, on retiring to deliberate, the written questions, and on returning into court, besides giving a general verdict, stated orally, in answer to a question of the clerk, that they answered all such written questions in the affirmative, but they signed no written finding thereon. Ho, entry was made in the minutes, of their answers thereto, at the time of the trial.

*634It is very plain, from the jurors’ subsequent statement, that the entry which the order appealed from directed to be made on the minutes of the court,- of their response to the questions put, is not what they wished or intended to make. They evidently misunderstood the inquiry addressed to them by the clerk in regard to such questions, and answered under that misapprehension. To allow it to stand .would make the verbal answer, given through mistake, (perhaps that of the foreman,) take the place of the written answer required by the statute, to the prejudice of the plaintiff. The occurrences in this case are a full illustration of the prudence of the provision which requires the -answer or findings to be in writing. If the jurors had been called upon separately to write their answers to each question separately, they would most probably have avoided any mistake. The provisions of a statute which require any document to be in writing, ought not to be dispensed with to work a wrong or accomplish exactly the reverse of what the parties, who ought to have signed the writing, intended. The answers entered were in reality and in substance not theirs, although they might have been unsound.

Hot being in writing, the findings on the submitted questions should be considered as out of the case ; in other words, as if the jury had failed to answer them in any way, and the question then arises whether the rendering of a general verdict, and its reception by the. court without objection, either by the judge or the parties, is not good, notwithstanding the jury have failed to answer special questions. The submission of special questions to a jury to be answered by them in addition to a general verdict of which such answers form no part, *(Code,*§ 262 ; see *also Thompson*v. Button, 14 *John.*84,) seem *to he entirely a matter of discretion with the court;*neither of the parties can require it as a matter of right. If they need a finding upon special questions, they must apply to the court in advance of the trial, for an order to that effect. Being a matter of discretion, I apprehend the court can withdraw the direction at anytime before the special finding is given, and the general verdict can be received without it. Ho vested *635right is acquired by- either party to have the findings given, because the court had once so directed it. There is always, therefore, room for withdrawing such directions and receiving a general verdict up to the time of signing the findings, filing them and entering them on the minutes, or for the court to exercise its discretion as to receiving them. Suppose jurors are ready to bring in a general verdict, if the court should not insist bn answers to the special questions, could not the latter be withdrawn ? To doubt that .power would convert the discretion of the court into the right of the parties. In this case a general verdict was received and entered by the clerk without objection by the parties. Something else, it.was true, was *said*by the jurors, at the time, but not put in writing, and signed by them, or read over by the clerk or entered by him in his minutes. This waived all objection by the parties to the receipt of the general verdict, and precluded either from insisting afterwards, either that such verdict was irregular, or that entries should be made of a verbal response, to some questions in order to control it.

As the Code gives to a special finding of facts by a jury the power of controlling a general verdict, if the two are inconsistent and the court is required to give judgment accordingly, (§ 262,) such judgment must be specially applied for, in order to determine such inconsistency and its extent, and an appeal would lie for error in giving such judgment. Requiring a jury to answer specially, is, therefore, such *a different direction*as to prevent the clerk from entering the judgment, under section 264, according to the general verdict. He can not determine what judgment is to be entered.

The object of the provision in regard to special findings, was to enable the court to leave the case to the jury generally, but to control their general verdict by findings, which would render a second trial unnecessary, in cases were no exceptions were taken, or rather to prevent the necessity of exceptions to the charge. If, in such cases, the court instruct a jury to find for either party, provided they find in a certain way, upon certain questions of fact, such instructions would be subject to excep*636tions, and error in any of them would send the case back for a new trial. The result would be the same on special findings, as if the court, on the trial, had charged as might be determined, by itself on more mature reflection and argument, when application is made for judgment, it ought to have charged, or if there was no room on the evidence to submit such questions to the jury, the general verdict rendered might be allowed to stand. The general verdict, as regards, the particular questions submitted, becomes a mere matter of form. It is, in fact, merely a mode of having exceptions to the charge argued and' carefully decided on a fuller examination than can be given them on the trial, without the necessity of a new trial in case of a mistake. Either party has a right to require a positive instruction to the jury, upon matters embraced by such special findings if raised by the evidence, and to except to a refusal to charge as requested, or to the charge as actually given. But they can not complain of a course which submits such special questions for special findings therein, in any event.

If the exceptions in this case cover the same ground as the special findings would in this case, if they had been made, since the former are to be heard at general term first, the defendant will have every benefit derivable from them. If they do not, the fault is his. I do not see that he will be more prejudiced by the omission of the jury to answer in writing the question submitted, than by his own neglect, in requiring a specific charge in relation to the same matter.

No verdict was rendered in this case, except the general verdict, and the jury did not answer in legal form the questions which could modify such verdict, and did not intend to answer, as it is proposed they should be made to do. All authorities, therefore, cited in regard to amending verdicts, are inapplicable.

If the defendant seeks to amend any defect, it should only be done by conforming the verdict to the actual intention of the jurors, to what they would have done, had an opportunity been afforded them of complying with the terms of the law. The slip, if it can be so called, of taking answers verbally, can *637only be corrected by amending the-equal mistake in the language used by the jurors, or rather their misapprehension of the question of the clerk. The statement of the jurors was not used to contradict their verdict, but to prove that they had never signed a fiinding in writing, and that what they said verbally was not intended to be as it was understood. If a verbal answer, taken down by the court or the clerk, is a substitute for the signature in writing required by law, what the jurors intended by such verbal answer, of course, can not be proved by their statement. Their intention is only important to show that they would not have signed such a written statement as the defendant claims they intended to sign, and their present statement is admissible to prove that. At all events, there is no evidence before us that any similar objection, or one that their statement was not sworn to, was taken on the hearing of the motion at special term. The objection should then have been made that they were incompetent witnesses to prove the facts they stated, and that their statement, consequently, must be excluded, if the defendant intended to rely on that objection.

Of course, if the verbal answer had been equivalent to a written one, the court had the power to amend the clerical error of omitting to insert it in the minutes. But how, in that event, is judgment to be entered in this case, or the exceptions heard, which is ordered to be done at general term P The former, of course, is to be suspended, until the latter'are heard," according to the order made on the trial of the case. But if a new trial is refused on the exceptions, can a motion be made afterwards at special term by the defendant, for judgment, because the special findings overrule the general verdict ? That would make the case heard at a general before it was heard at a special term. In arguing his exceptions first, the defendant admits that judgment must be given for the plaintiff, if his exceptions fail; which is the only reason why the Code permits the. excepting party to be first heard at general term. Why should the plaintiff be put to the expense of arguing the exceptions, if the defendant may have a right *638to judgment on the special findings to be afterwards pressed by him.

It was, of course, immaterial to the defendant whether the supposed answers to the special questions by the jury were placed on the record or not, unless their effect was to overthrow the general verdict for the plaintiff. If that were so, he was bound to elect whether he would try to have the verdict and judgment in his favor, on one ground, or a new trial on the other, and not first get, or be defeated on the latter, and thus fall back on the former.

Considering, therefore, that the defendant’s counsel must be deemed to have waived all his right, if any, to a written answer to the special questions put to the jury, by not objecting to the general verdict without them ; that the court, also, by receiving the general verdict without insisting on the jurors’ signing a written answer to such questions, by not passing on the effect upon the general verdict of the verbal answers to such questions,' at the time of receiving the verdict, must be deemed to have revoked or withdrawn his requests or instructions to the jury to answer such questions, and that the plaintiff did no act- to waive his right to have the questions answered in writing, if answered at all, the answers to which might overthrow the general verdict .in his favor. I think the general verdict should stand unaffected by the verbal answers given by the jury to such questions.

Considering, further, that the plaintiff, having done no act to waive any objection to the answers not being in writing, the defendant, in applying to amend the record, not only, by supplying an accidental omission, but also by making a verbal equal to a written answer, sought equitable relief, ,he was bound to do equity by so amending the record as to make it conform to the intention of the jurors in th'eir answer to the clerk’s question as they understood it.

The order made should be reversed, unless the defendant will consent that the same be modified, so as to allow the ■jurors’ answers to the second and third questions to be inserted as being in the negative.