The Leavenworth weekly times., 1879-06-26
SUPRtME COUAT &Y.LkBI.
STATE OF KANSAS, u
sCPREnE IoURT.
BIZ THE COURT.
VALENTINE, j.

! sIPhEnE NOCRI.
( No. ,i65 j. C Johnson VS. f Husband anC
H. Short.-Error from Saline county
Reversed.
By THE COURT VALENTINE, ]
]. In an action on a promissOry note, the
defendant Sets up delenss To the action,
that the note was given for two diseased
horses, and alleging fraud and deceit on the
part of the plaintiff in selling the same. the
plaintiff admitted On the trial that the Lors-s
had the dlstemper when so q. aud that l. 2
distemper wSs a contagious disease. Inc =
fendanI, however, claimed that the horses
had something worse than the distemper.
the sale. Therefore, wnet ler the horses had
at the tirue OF ~ sale some disease worse
than the distemp=r. and whether the plain
[ II knew IL at the time of the sale, were two
very important que uons OF TACT IA the case.
For the purpose OF asc-rtsiniDg the opin on
of the jury upon these questions. the plaintiff
requested the court JO submit To the jury the
following special questions, to-wit:
81 What, If any disease did the horses
have al the time OF sa.e?"
~. Did the seller know what disease the
horses had when sold -
The court below submitted the first Of these
questions 10 he jury, but refused he second,
AID In lieu OF the second gave the jury the
iDliosing: "Did the sellers know Inat the
horses had, when sold, any disease" 10
wn ch the plaiutiH duly excepted. The jury
returned a general verdict IN favor OF Ceiend-
ant, assessing his damages at 5sl.73) aud an
swe-ed said special questions A. follows; To
the first tney answered: "A contagious dis
ease ~ 10 the second they Answered: ~ e. ="
The plaintiff obje-ted To the answer OF the
jury upon the trst pa tiIuiar que stlon OF lac
submitted, being received as not IesppnsiE-
TO the question, and requested the court ."
direct the jury To state spec fcaily the nTrne
OF the dis.ase or II theg oOUid not do that, then
10 state Uiieth The disease EHOtrs as GtS-
temper on something e'se; wGIcn the courJ =
u ed TO do, ana oi.IeTeG the verdict aud spr-
cial findings filed by the cieI and discnsTs,
the jury" To all OF which the p aint II day |
executed. Hell, Thai by this a5tion of the
court and jury the painuf was deprived o a
right given tn him by the statutes,
laws of 1874 page 10, lil, chap;er 81, 50 clton
/; Bent W. PhlIbri' X l6 X aus +, 100; central
Branch U. r. Rali a Dmpauy vs., Holman,
y Kansas the right 10 have speria! questions |
of fact submitted To the jury and proper an. /
swers given To them.
,. Where a verdict is obtained by marking,
aggregation and di ision: and tt l. uaceI tt' IA /
whether IL was obtained in pursuance of 4
previous agreement, made by the jury, that /
aggregation ana division, shou Il ne Their vel.
dict; Yut IL l. certain that at l-a-t four OF the
jurors oelirved II was 80 obtained AID evl
DENLY felt that they were bound 10 ~Dlde u.
Sucn r, suit; He'd, That such verdict should
be set aside on prop T notion
3 TIE rule stated III ire case or Perry ".
Bailey, Il as, 80, that the sIiIisVts of juror
stating facts winch do not essen 'iaiy lnh' r
la the verdict Itself, may DE rec i've 10 over
.hrow or set aside such verdict, followed.
All the justices concnrIing
4 true copy. Attest: 4. FANNATT,
l.. > Clerk Supreuls court,