The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-09-29

not feel such to be my duty and see no good
purpose 10 Dc served In doing l will, there
iofe: as orleHy as can, state my views and con-
illusions in this case with an occasional refer
ehce 20 some OF the leading features of the evil
oehce. Inc defendants attack the verdict on the
ground that it does not find all the material facts
IN the case. in addition to other objections made
TO It. A verdict, called special under our statute
must contain all the material facts proved under
the issues In the case The practice of demand
ing a special verdict is not in general favor with
the bench or bar. 1t is dangerous practice at
res1-often results in mistrials. The view of
the supreme Court is, that Its very existence
Is good cause for suspicion that its object is to
conceal or evade proved facts" IL Backford 246 |
"nere the issues are narrow and the facts few
sucn verdict may be called for with more safe
W. 1t is claimed that this verdict is defective in
not presenting the material facts in regard to the
contract of sale and the completion thereof
Inc contract of sale was in writing and the facts
IN relation thereto are also embodied in various
papers, and all questions arising in regard to the
same may be easily determined, and may not
iairiy be the subject of dispute. The facts
In relation to such sale as found
py the jury are, "that in short time an agree
ment was reached. and the said g. $3.50 shares of
STOCK were purchased at the sum of Sl65 per
share. and that the same were transferred to
SAID Morrison and Miller, who were to hold the
same for said Indiana Banking Company, as said
New and Wright well knew and a preliminary
note OF $342 700 was signed by said Morrison an6.
Miller, and certificates of stock made out and
signed, and memorandum receipts for a part of
sad stock signed on the 23d day of February,
1873, as preliminary matters only That there
was at the time of the signing of such preimin-
airy documents distinct agreement and under
standing that said $342, 700 note should not be
payable IN money, but was to be taken up and
paid by notes then held by said national bank,
and in place thereof the said national bank was
to have the notes of said Needham, Miller. Da-
Wis, and Ketcham. notes from the Indiana Bank
ing Company and money procured East" The
facts as shown by the written instrument in re-
lation to said sale, and upon which said finding is
based, are that on the 2lst day of February,
1878, the defendants, New and Wright, and Nor
rison and Miller, executed in writing the follow
ing contract of sale "John G.. New and John c.
Wright have this day sold to William Fl. Morri-
son and Samuel Miller $3.50 shares of the CAPT.
tai stock OF the First National Bank. of India
napolis, Ind, at the rate of $l65 per share, max
ing the sum of 1892. 700, to be paid for cash in
hand" And, on the 23d day of February, 1873,
said Morrison and Miller signed and delivered to
the defendants the following instruments, in
writing; This memorandum witnesses that
John C. New and John G. Wright have
this day delivered, assigned and transferred to
William H. Morrison and Samuel Miller !, $50
shares of the capital stock of the First National
Bank of Indianapolis, Ind, and said Miller and
Morrison agree to accept and receive as delivered
o0O additional shares of said stock now held by
the Connecticut Mutual Life Insurance Company,
of Hartford, Conn, as security for a note of
George w. New for $50. 900, and said note dated
Dec /, 1877, payable six months after date at the
Third National Bank in the city of New York,
which said note said Miller and Morrison hereby
assume and agree to pay at or before maturity,
and to hold and protect said New harmless there
from, and said New and Wright also agree to de-
liver on demand twenty additional shares of said
stock, which they have also assigned, but tenn
porarily hold at the request of said Miller and
Morrison" The said stock was, in fact, delivered
IN accordance with the terms of said agreement
and transferred on the books of the bank at the
date last named. 1t will be seen that it does not
appear from the verdict that there ever was any
contract Of sale, written OF oral, that the note
designated AS "preliminary" was ever delivered or
that the instrument called memorandum re-
ceipt' was delivered to anyone. The verdict is
also silent as to the agreement to pay the $50,
600 of purchase money mentioned in the agree
ment as assumed by Morrison and Miller and also
as to the assignment and manual delivery of the
stock Under the issues in this case, are these
material facts that ought to be brought into the
verdict2 To my mind no serious question is pre-
sented in this inquiry They are important.
to determine the date of the completion of the
sale, rather the time when the of action,
if any there be, arose, and when the statute be-
gan to run-a vital question to be determined on
the plea of the statute of limitations The ques-
ton whether the statutory period has elapsed is
question: to my mind of few days, and if it
can be ascertaned from the evidence when the
cause arose. it must be made to appear. l do
not say that proper practice would
ten instruments in the verdict-that
they should be copied h8c verba into che body of
the instrument The verdict should not contain
the evidence. but should embody the facts con
tanned therein-n other words what they prove.
To determine what the law is, as app Piled to such
verdict, all such facts established by the ev
dence. and are material and within the issues,
must be presented to the court in such verdict,
tot such facts as may be thought sufficient tc
sustain the cause of party. Instead OF giving
the time when q written contract of sale was
made, and the terms of such agreement and the
facts about note and its execution, and an
agreement to pay large sum of money, it will
not do to respond to such facts by saying THAT
in a short time All agreement was reached" that
"a preliminary note and memorandum receipts
were signed. 1t is not the Office of special YER
dict to classify the written instruments offered
in evidence and name them, and leave the
court to look to the evidence for the facts they
prove. 1t is claimed that the statute began tc
run from the date of the contract of sale, the
2lst day of February, 1873, very grave ques
ton and no reference to such an event appeared
! in the verdict for determination by the court
The verdict is otherwise defective in stating
conclusions of law and emitting facts in relation
thereto. The jury had nothing to do with the
law in the case and such statements OF the Law
will not supply the want of the facts | will only
consider few of them, and will bring them
together for that purpose. 1t is stated thai
New and Wright ''conspired together t.
I carry it's worthless assets the books of the
bank as available and to conceal the embezzle
ments" and lin furtherance of corrupt and GOV
enous design, said New and Wright procured
! bank examiner to make pretended examina
! ton" etc. THAT the final and first complete
delivery of shares was on the 28uh day of Febru
airy, 1875" and further, that New and Wright
fraudulently concealed from Morrison the EN-
! bezzlements of Slaughter" etc, and "actively
concealed from the Indiana Banking Company
! the actual condition of the bank" The jury
! could not determine that corrupt and coven
Gus design" was shown; nor what was pre-
| tended examination nor what was a final ant
/ first complete delivery" and certainly could not
/ find the conclusion that New and Wright hat
'fraudulently concealed" embezzlements from
Morrison, and had actively concealed" the cause
/ AI, fno in