Sonnesyn v. Akin

Young, J.

This is an action to recover damages for fraud. The plaintiff has appealed from an order of the district court vacating the verdict and judgment entered therein in his favor and granting a new trial. The defendant’s motion for a new trial was made -upon the minutes. The granting of the motion is assigned as error. It is essential to- a correct understanding of the questions presented upon -this appeal to set out the material allegations of the complaint and answer, and also the verdict upon which the judgment vacated was based.

The complaint alleges “that on the 30th day of September, 1902, the defendants, with intent to deceive and defraud the plaintiff, then and there falsely and fraudulently pretended and -represented to the plaintiff that they were the -owners and legally entitled to enter into a contract to sell and -convey to the plaintiff the following described real estate [describing 960 acres of land situated in Ransom county], and could give a contract for a good- and perfect title thereto, and would furnish the plaintiff with -an abstract of title, which abstract of title would show that the defendants were the owners of said described land and premises -and had the legal right to enter into a contract to sell and convey the same; that the -plaintiff, relying upon such representations, entered into a contract to purchase the said described premises and land of the defendants, and paid the defendants thereunder, in- merchandise and cash, the sum of $12,857.33; that the defendants were not the owners of said described lands and premises, and were not legally entitled to enter into a contract to sell and convey the same, and could not and have not furnished the plaintiff an abstract of title *252 of said land and premises showing that they were the owners of the same; that at the time plaintiff made the contract with the defendants to purchase said lands and made said payments thereon, said lands were owned by others; * * * that by reason of the premises the plaintiff has been damaged in the sum of $12,857.33” —for which sum he demands judgment.

The defendants, in their answer, admit the execution of the written contract referred to in the complaint, and attach a copy of the same to their answer as an exhibit; this being known in the record as “Exhibit A.” They also admit the receipt of a $2,500 cash payment upon the contract, and a further payment by the delivery of the stock of merchandise as alleged in the complaint. But they deny that they stated or represented that they were the owners of the land, and “especially deny that by reason of any of the facts set forth in the complaint plaintiff has been damaged in the sum of $12,857.33, or in any other sum or amount whatever,” and allege “that the defendants have -duly complied with all the terms and conditions of said written contract, and have tendered to the plaintiff an abstract of title to1 said premises, and that they are now ready, able and willing to convey, or cause to be conveyed to the plaintiff, by good and sufficient deeds of conveyance, all the lands in said- contract mentioned, in accordance with the terms and conditions of said contract, and conveying to the plaintiff full title to all of said lands, as therein mentioned, upon the full performance 'by the plaintiff of the other terms and conditions of said contract, and that the defendants herewith tender and offer full and complete performance of the terms and conditions upon their part to be performed.”

The contract was signed by the plaintiff and by the defendants. By the terms of this contract the plaintiff agreed to purchase the lands in question at an agreed price of $25,920. The contract describes the land, and fixes the terms of payment and rate of interest on deferred payments. Under it $2,500 was to be paid upon its execution, and $10,320 was to be paid by the delivery to the defendants of a certain stock of merchandise, located at Ormsby, Minn., at wholesale price, the taking of the inventory to begin on October 3, 1902. A further payment of $2,500 was to be made on January 1, 1903, when -the deal was to be completed. Plaintiff assumed a mortgage upon the land, and was to' pay the remainder of the purchase price in five equal annual installments. The contract makes no reference to the ownership of the land or *253 the condition of the title, but provides that: “An abstract of title is to be furnished to me (Sonnesyn) by you when $2,500 of the purchase money is actually paid, and if such abstract of title is objectionable you are to have until January 1, 1903, after its return to you, with such objections noted, within which to supply any deficiency or make a good merchantable title.”

This action was commenced November 26, 1902. The record shows that at the close of the testimony “counsel for the plaintiff, moved the court that the case be submitted to the jury upon a list of special questions covering the issues in the case.” This motion was granted. Before the proposed questions were submitted to the jury counsel for defendants requested that “questions numbered 3 and 4 be answered ‘No/ in order that there may be no confusion arising in the minds of the jury,” and the answers were inserted in accordance with such request. Thereafter the jury returned the following verdict:

“We, the jury impaneled and sworn to try the above-entitled action, do find for the plaintiff.

“Dated May 23, 1903.

“.[Signed] A. H. Barnes, Foreman.

“Question 1. Did the defendants or either of them, at or before making the contract, ‘Exhibit A/ state to or willfully lead the plaintiff to believe that they or either of them owned the lands which they had agreed to sell him? Answer. Yes.

“Question. 2. If you answer the above question ‘Yes/ did the plaintiff believe and rely upon such statements and representations, and was such belief and reliance one of the inducements that caused him to enter into said contract, and to part with his money and property? Answer. Yes.

“Question 3. Did the defendants or either of them own the lands described in said contract on the 30th day of December, 1902 ? Answer. No.

“Question 4. Did the defendants or either of them, own all of the lands described in said contract at the time this action was commenced, to wit, November 26, 1902? Answer. No.

“Question 5. What was the value of the goods and fixtures delivered to the defendants by the plaintiff? Answer. $10,000.

“Question 6. If .plaintiff is entitled to recover, should interest be computed on the damages? Answer. Yes.

“Dated May 23, 1903.

“[Signed] A. H. Barnes, Foreman.”

*254 On May 25, 1903, the trial judge directed the entry of judgment against the defendants for $13,052.52; the order therefor reciting that, “the jury having returned a verdict in favor of the •plaintiff generally, and having -been required to make special findings, which special findings and the answers thereto1 were as follows [setting o.ut a copy of the above verdict], and the court having, upon said special findings, concluded that the plaintiff is entitled to judgment against the defendants and each of them” for the above sum, orders, etc.

Thereafter t'he defendants moved, upon the minutes of the court, to vacate and set aside the verdict and judgment and for a new trial. The notice of intention specified the following grounds: “(1) That the verdict and damages are excessive, appearing to- have been given under the influence of passion or prejudice. (2) That the evidence is insufficient to justify -the verdict in the following particulars, viz.: That the undisputed evidence shows that the plaintiff suffered no loss, damage or injury by reason of the alleged fraud, deceit and false representations made by the defendants; that the undisputed testimony shows that, at and prior to the -time of the making of the contracts between plaintiff and defendants, the defendants had agency contracts or other contracts with the owners of the land in question, empowering defendants to purchase said lands or to cause them to be conveyed to others, including the plaintiff; that the undisputed evidence shows that on the 1st day of January, 1903, upon which date the contract between plaintiff and defendants was to be consummated, and long before the trial -of this action, the defendants had obtained title in fee to all of said lands, excepting the so-called 'Frey quarter section/ title to which was vested in the defendants upon January 15, 1903 ; that the undisputed evidence shows that at and prior to the -time of the trial of this action the defendants were clothed with the title to all of said- -lands in fee; that the undisputed evidence shows that -the defendants always intended to comply with all the terms of said- -contract upon their part to -be kept and- performed from the time- s-ai-d contract was made; that they were at -all times from a date -prior to the making of said contract in position- to acquire -title to all said lands; that they did acquire title to said lands prior to the -trial of this action; -and that, if plaintiff suffered any injury owing to said alleged fraudulent -representations, it was a nominal injury only,an-d that he suffered n-o real, substantial injury or damages. (3) That the verdict is against an-d contrary to -the law, in that the *255 undisputed evidence shows that the material allegations contained in t'he complaint, to the effect that the -defendants did not own said lands, were substantially untrue, for the reason that during all times mentioned in the complaint the defendants -were the owners of contracts which enabled them to acquire or to ’have conveyed title -to said lands; that said verdict is against la-w in this: That the undisputed evidence shows said contract -between the plaintiff and the defendants was during all the time after it was made, down to and during the trial of said action, a valid, subsisting contract; and that the evidence upon the trial failed to show any breach of said- contract on the part of the defendants, or any damage suffered thereunder -by the plaintiff.”

There is no dispute as to the vital facts upon which -the motion for new trial was based. They are substantially as stated in the notice of intention. The defendants made no default in the performance of -their obligations under the contract. The trial judge caused the entry of a judgment against the defendants- for $13,052.52., This he vacated upon the defendants’ motion. The question on this appeal is whether it appears that he abused his discretion in vacating the verdict and- judgment and granting a new trial. We are of the opinion that he -did not, and that the order must therefore be affirmed. “Where -a verdict is vacated and a new trial granted by a -trial court upon the ground of insufficient evidence, the court in so doing is acting within judicial discretion, and such discretion will not be disturbed in a court of review, except in cases of manifest -abuse.” Dinnie v. Johnson, 8 N. D. 153, 77 N. W. 612; Patch v. Railway Co., 5 N. D. 55, 63 N. W. 207; Gull River Lumber Co. v. Osborne, 6 N. D. 276, 69 N. W. 691; Pengilly v. Case Mach. Co., 11 N. D. 249, 91 N. W. 63.

The action is based upon fraud. The fraud alleged consists of the defendant’s false statements -as to the title and ownership of the land. It seems to have been the theory of plaintiff’s counsel, and one adopted -by the court in ordering judgment for the plaintiff, that, if the defendant in fact falsely stated that they had the legal -title, this statement of itself constituted an actionable wrong, for which the defendants must respond in damages. This is erroneous. It is a well-s.ett-led maxim that fraud without injury is not actionable. “The law takes no cognizance of a fraud which does not in fact work some injury.” People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451; Eastwood v. Bain, 3 H. & N. 738; Hemingway v. Hamilton, 4 M. & W. 115. “It has been very justly remarked that to sup *256 port an action at law for misrepresentation there must be a fraud committed by the defendant and a damage resulting from such fraud to the plaintiff.” “Courts of equity do not, any more than courts of law, sit for the purpose of enforcing moral obligations or correcting unconscientious acts which are followed by no loss or injury.” 1 Story’s Equity Jurisprudence, section 202; Vernon v. Keys, 12 East. 637; 9 Cyc. 431, and cases cited. It is accordingly well settled that false statements of a vendor of real estate in procuring the execution of a written contract for the purchase and sale thereof, which are neither attended nor followed by injury, will not sustain an action for deceit. As to- this action it is said that “there must not only be a false representation made with intent to deceive, but the representation must be relied on and- cause damage to a party before an action will lie.” Barber v. Kilbourn, 16 Wis. 485; Castleman v. Griffin, 13 Wis. 535; Freeman v. Venner, 120 Mass. 424; Ide v. Gray, 11 Vt. 615; Randall v. Hazelton (Mass.) 12 Allen, 412; Fuller v. Hogdon, 25 Me. 243. In Alden v. Wright, 47 Minn. 225, 49 N. W. 767, the court states that one of the essential elements which constitutes a cause of action for deceit is “that the party induced to act has been damaged. He must have acted on the faith of the false representation to his damage. The party cannot sustain an action of this character when no harm has come to him. Deceit and injury must concur” — citing numerous cases. And it is equally well settled that a court of equity will not adjudge a -rescission of a -contract for the purchase and sale of real estate on account of fraudulent representations in procuring its execution, unless damage or injury is shown. Marriner v. Dennison, 78 Cal. 202, 20 Pac. 386; Bailey v. Fox, 78 Cal. 389, 20 Pac. 868; Morrison v. Lods, 39 Cal. 381; Purdy v. Bullard, 41 Cal. 444; Wainwright v. Weske, 82 Cal. 193, 23 Pac. 12; Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678; Smith v. Richards, 13 Pet. (U. S.) 26, 10 L. Ed. 42; Wainscott v. Occidental, etc., Ass’n, 98 Cal. 253, 33 Pac. 88; Huffman v. Long (Minn.) 42 N. W. 355; Johnson v. Seymour (Mich.) 44 N. W. 344; Armstrong v. Breen (Iowa) 69 N. W. 1125; Beard v. Bliley (Colo. App.) 34 Pac. 271; Nelson v. Grondahl, 12 N. D. 130, 96 N. W. 299, and cases cited.

If one is actually defrauded by a false statement which -induced him -to enter into a contract, lie has 'his remedy for the injury. The -contract thus procured is not void, but voidable. 9 Cyc. 431; 14 Am. & Eng. Enc. Law, 156, and cases cited. He may either *257 rescind the contract and recover any sums paid upon it, or property delivered pursuant to it, or he may affirm the contract, take such 'benefits as are obtainable under it, and recover damages for the injuries sustained by reason of the false statement. Tice v. Zinsser, 76 N. Y. 549; Krumm v. Beach, 96 N. Y. 398; Gifford v. Carvill, 29 Cal. 589; Herrin v. Libbey, 36 Me. 350; Burton v. Stewart (N. Y.) 3 Wend. 236, 20 Am. Dec. 692; Purdy v. Bullard, 41 Cal. 444. These alternative remedies, it will be seen, are inconsistent, and are not available in the same action; for one is 'based upon a rescission of the contract and the other upon an affirmance of it — one upon a contract implied by law obligating the wrongdoer to restore whatever of value he has received; the other in tort for damages for the injury done by the false statement. When the person injured elects the latter remedy, i. >e., to sue for the tort, he affirms the contract, thus continuing it as a binding obligation. Heastings v. McGee, 66 Pa. 384; Kimball v. Cunningham, 4 Mass. 502, 3 Am. Dec. 230; Whiteside v. Brawley (Mass.) 24 N. E. 1088; Johnson v. Cookerly, 33 Ind. 151; Wheeler v. Dunn (Col.) 22 Pac. 827; Stuart v. Hayden, 72 Fed. 402, 411, 18 C. C. A. 618; Chilson v. Houston, 9 N. D. 498, 84 N. W. 354. And “it is the rule that the defrauded party to a contract has but one election to rescind, that he must exercise that election with reasonable promptitude after the discovery of the fraud, and that, when he once elects, he must abide by his decision.” Dennis v. Jones, 44 N. J. Eq. 513, 14 Atl. 913, 6 Am. St. Rep. 899 ; Bigelow on Fraud, 436,. In this case the plaintiff elected to sue for damages for the alleged fraud. In doing so he affirmed the 'contract. It stands undisputed in this case that -the defendants were prepared and offered to convey the land when performance was due under the contract. Plaintiff was thus tendered the full fruit of his bargain in accordance with the terms of his contract of purchase. The false representation was, therefore, without injury or damage; for there has been no failure of title, and no other cause for damage is alleged, or even suggested. Upon this state of facts it is apparent that the verdict is without support in the evidence. Plaintiff alleges that he was damaged by the false statement. The fact that the evidence fails to show that the false statement was followed by injury is fatal to a recovery. Plaintiff’s counsel properly concede that the verdict has no support in the evidence if the action be treated as one for deceit, because there is no evidence that any injury or damage resulted from the false statement, rand *258 admit there has been- no -default under the contract. They seek to sustain their recovery, upon the theory that the action is based upon a rescission of the -contract.

Upon a former -appeal fr-om an or-d-er dissolving an attachment in -this -case, we construed the complaint as stating a cause of action for deceit. Sonnesyn v. Akin, 12 N.D. 227, 97 N. W. 557. This construction of the -complaint was not then -Challenged. Neither -was it challenged in the plaintiff’s petition for rehearing or in -the brief upon the rehearing, both of -which were filed after the trial of -the -action. His -counsel now contend, however, that the action rests upon a rescission of the contract. Their present position, as stated- in their brief, i-s as follows: “The alleged fraud vitiated the -contract. * * * Our case is based upon the theory that the contract was disaffirmed by bringing the action. * * * Our claim is that the fraud -destroyed all of -the contract. Our cause of -action is not based upon the contract, but is founded on the fraud, and assumes that there never was -any contract. * * * It has been -disaffirmed for fraud, and thereby utterly destroyed.” This theory of the action is not sustained by the pleadings. Neither does the evidence or findings -afford grounds for sustaining a recovery, either upon the ground -that the contract was void without disaffirman-ce -or that it was avoided- by disaffirmance. That the contract was not void, but at the -most voidable, has already been stated. The -complaint does not allege that the contract was disaffirmed, -and there is n-o evidence of a -disaffirmance. On the -contrary, the complaint states a cause of action- for deceit^ and prays for damages therefor, and states no -other cause of action, and, s-o far' as the -bringing of the action- is notice, it -is notice that the plaintiff would not waive the t-o-rt and rely -upon the implied contract -which would -arise -upon a disaffirmance, but would rely upon the tort and recover his -damages resulting therefrom- and affirm the -contract. There is an entire absence of both allegation and -proof of rescission-. It is- not claimed -that the -contract ha-s been rescinded- by the judgment of any court. Neither can it be contended- that it has -been- rescinded by mutual consent, for the defendants have steadfastly -insisted upon performance, and they tendered performance when performance was due. Neither -can it be sai-d- that the p-laintiff has rescinded by his -own- act; for to disaffirm a written contract “the law -requires s-ome positive -act by the party who w-ould rescind which shall manifest s-uch intention and put -the opposite party on his guard'.” Higby v. Whit- *259 taker, 8 Ohio, 198; Walters v. Miller, 10 Iowa, 427; Melton v. Smith, 65 Mo. 315. “A contract for the conveyance of real estate cannot be rescinded by the vendee without the -performance of some act which will give the vendo-r -notice of his intention and -put him upon his guard.” Mullin v. Bloomer, 11 Iowa, 360. See, also, American Wine Co. v. Brasher (C. C.) 13 Fed. 595, 603; Carney v. Newberry, 24 Ill. 203; Gaty v. Sack, 19 Mo. App. 470; Davis v. Read (C. C.) 37 Fed. 418, 424; Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798; Ayres v. Mitchell, 3 Smedes & M. 683; Lawrence v. Dale, 3 John. Ch. 23. And as a condition to a recovery of the -consideration paid by a defrauded vendee, as upon a disaffirmance, he “must demand the money he has paid or the -property he has delivered to such other party -before suit brought in- -order to recover the same.” Weeks v. Robie, 42 N. H. 316; Swazey v. Choate Mfg. Co., 48 N. H. 200; Corse & Co. v. Minnesota Grain Co. (Minn.) 102 N. W. 728, and cases cited. And it is necessary, -in an action to recover payments upon a contract obtained by fraud, to “-aver facts showing a rescission •of the contract of purchase. * * * Until the contract is rescinded -in some manner, an action to recover ,-su-ch payment -cannot be maintained.” Herman v. Gray, 79 Wis. 182, 48 N. W. 113. “An -action at law- to -recover back that whi-ch has been -paid upon a -contract void for fraud supposes a precedent rescission -of the contract by the act of the plaintiff.” Ludington v. Patton, 111 Wis. 208, 86 N. W. 571; Potter v. Taggart, 54 Wis. 395, 400, 11 N. W. 678; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 L. R. A. 705.

Some -courts have held that a vendor of personal property, -when the sale has been -induced by fraud, may sue -in replevin or trover, without previous notice, tender or -demand, treating the acceptance of the property -by the fraudulent vendee as a tortious taking -and upon the ground- that no title pa-sses. Thurston v. Blanchard (Mass.) 22 Pick. 18, 33 Am. Dec. 700; Wood v. Garland, 58 N. H. 154, and Carl v. McGonigal (Mich.) 25 N. W. 516, are of this class. Other courts hol-d in such cases that the title passes, and that a rescission -is -essential before the defrauded vendor can reclaim the property. Farwell v. Hanchett (Ill.) 11 N. E. 875; Doane v. Lockwood (Ill). 4 N. E. 500. See, also, cases cited in note to Sisson Potter Co. v. Hill (R. I.) 21 L. R. A. 206. Whatever may be the correct rule as to a sale of personal property in *260 ■dueed- by fraud, it is apparent that it does not apply to the case at bar. The sale in this case was of real estate. The action is not brought by a defrauded vendor of personal property, but by a purchaser of real estate, who alleges that he was fraudulently induced -to make' the contract of purchase to bis -damage. If it were possible to change the action from one ex delicto to- recover damages -to an action ex contractu as upon a rescission, still the situation would not be the same as in a sale of personal property; for this action is not brought by die vendor to recover personal property which he has sold. It w-as .brought by the purchaser of real estate, and would in that event be brought, not to recover property sold, but to recover payments made upon a voidable contract. Under such circumstances it will be seen that the right of recovery is entirely dependent upon a precedent rescission, and so tire cases hold.

Finally it is contended that, even if the theory upon which the plaintiff recovered was erroneous, the error could not be corrected upon defendants’ motion. This conclusion is based upon the claim that the instructions given by the judge to the jury .authorized the recovery which the plaintiff now seeks to sustain, and that the instructions were not excepted to by the defendants. The point urged is that the jury were authorized to 'apply an erroneous rule ■of law, Which was not excepted to, and that under this erroneous rule the evidence is sufficient to sustain the verdict, and that the recovery must therefore stand. This contention cannot be sustained. The rule thus invoked has no application to this case, and for the reason that the jury did not return a general verdict. It will be seen, by reference to the statements of .the proceedings above set out, that the law of the case was not applied by the jury, but by the trial judge. The damage and (the amount thereof were awarded, not by the jury, but by the trial judge, after the jury was discharged and after a review of the special findings. Upon this state of facts the trial court “is free to consider and should consider what the -law is, and is not bound by its instructions previously given to the jury. It is true a jury must take instructions as to the law, whether right or wrong; * * * but the court does not -instruct itself and does not bind itself.” Baird v. C., R. I. & P. Ry. Co., 61 Iowa, 359, 31 N. W. 733. That the verdict is not a general verdict is apparent, for it does not pass upon all of the issues. It wholly -omi-ts the vital issue, the amount of dam *261 ages sustained by the plaintiff. Section 5446, Rev. Codes 1899, provides that, “when a verdict is found for the plaintiff in an action for the recovery of money, * * * the jury must also find the amount of the recovery.” The jury found no amount. It is silent upon this issue. “A verdict in -an action in which a money judgment is sought, whether by way of liquidated or unliquidated damages, which does not state specifically -the amount to which the jury deem the plaintiff entitled, is not a verdict on which a valid judgment can be entered.” Van Benthuysen v. DeWitt (N. Y.) 4 Johns. 213; Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Gerhab v: White, 40 N. J. Law, 242; Gaither v. Wilmer, 71 Md. 361, 18 Atl. 590, 5 L. R. A. 756, 17 Am. St. Rep. 542; L. & N. Ry. Co. v. Hartwell, 99 Ky. 436, 36 S. W. 183, 38 S. W. 1041; Bartle v. Plane, 68 Iowa, 227, 26 N. W. 88; Fryberger v. Carney, 26 Minn. 84, 1 N. W. 807; Mayor v. Calhoun, 103 Ga. 675, 30 S. E. 434; Watson v. Damon, 54 Cal. 278; Taylor v. Hathaway, 29 Ark. 597; Abbott’s Trial Brief, 515; 28 Am. & Eng. Enc. Law, 303, 307, and cases cited. And in this case the omission is fatal, and cannot be'supplied by reference to the pleadings.

It is also equally essential that the jury shall assess the damages in a special verdict. “A special verdict should leave to the decision of -the court only questions of law.” Morrison v. Lee, 13 N. D. —, 102 N. W. 223; Wainright v. Burroughs, 1 Ind. App. 393; 27 N. E. 591; Mitchell v. Geisendorff, 44 Ind. 358; Dawson v. Shirk, 102 Ind. 184, 1 N. E. 292; City of Ft. Wayne v. Durnell, 13 Ind. App. 669, 42 N. E. 242; Cole v. Powell, 17 Ind, App. 438, 46 N. E. 1006. In this case the special findings do not cover all of the issues and are not equivalent to a special verdict. Whether, if the verdict had been general, it would have been necessary to except to the instruction stating an improper rule of damages, the motion -being upon the court’s minutes, in order to set aside the verdict upon the ground -that the amount awarded was excessive and unauthorized, we need not determine. On this point see Bay-lie’s New Trials and Appeals, 545, 546, and cases cited.

Aside from the merits, the order must be affirmed for another reason. The record presents -a case of -mistrial. The jury did not return a general verdict, and the special findings do not cover all of the issues so that they -can be treated as a special verdict. The jury found -that the defendants made a false statement, that the plaintiff relied upon it as one of the inducements to enter into the *262 contract -to purchase .the land', that the value of the goods delivered upon the contract was $10,000, and that the plaintiff should have interest on his damages. There is entire silence as to the amount of damages, or as to whether the plaintiff suffered any damages. The fact that the defendant delivered $10,000 worth of goods as payment upon the contract merely establishes the fact that he made a payment of property of that value upon the contract. It 'does not show that he was damaged in that sum, or in any other sum, by so doing. The question of damages would turn upon the question of whether the obligation of the defendants to convey the title was of any value, and whether it failed in whole or in part. The answer alleged full performance, and the evidence established it without dispute. The special findings 'wholly ignored this issue, and, like the so-called general verdict, did not find that the plaintiff had been damaged in any sum. “I-t is a mistrial where, no general verdict being returned, the answers of the jury to specific questions do not cover the whole case like a special verdict.” Manning v. Monaghan, 23 N. Y. 539. “And until all the issues of fact are decided no final judgment can be entered.” Kiel v. Reay, 50 Cal. 61; Kintz v. McNeal, 1 Denio, 436; Chamberlain v. Dempsey (N. Y.) 14 Abb. Prac. 241; Fisk v. Henarie (C. C.) 32 Fed. 417, 427.

The order appealed from should be affirmed, and it is so ordered.

. Morgan, C. J., concurs. Engerud, J., having been of counsel in the court below, did not sit in the above case; Hon. C. J. Fisk, Judge of the First Judicial District, sitting by request.