
    Close v. Atkins.
    Verdict: special: general. "When both. a general and a special verdict are returned, it must affirmatively appear that the former is inconsistent with the latter to justify a judgment upon the special verdict. The general verdict will not he overthrown upon the mere presumption of inconsistency.
    
      Appeal from Polls Ciromt Court.
    
    Wednesday, October 7.
    Action upon a written contract for the delivery of 200,000 brick at the price of $8.50 per M., which plaintiff undertook to furnish defendant. The petition alleges that in pursuance-of the contract the brick were delivered, and admits certain payments therefor.
    The answer denies the delivery of the brick pursuant to the contract, and sets up certain payments thereon. It avers that a part of the brick delivered were of an inferior quality, and unfit for use, and that defendant was compelled to purchase other brick, whereby he sustained damages in the sum of $188.
    Other matters are set up in the petition, which need not be here stated.
    The cause was submitted to a jury, who returned a general verdict for plaintiff in the sum of $194.10, and the following special findings among others, in answer to questions submitted to them:
    “ Were the brick delivered such as were described in the contract as to size and quality?”
    Answer. — “ Part of them.”
    “ Were the brick delivered of good merchantable quality, and of full size? ”
    Answer. — “Part of them.”
    “ How many brick were delivered, and when? ”
    Answer — “ 180,000, during the season of 1866.”
    What were the brick delivered worth per thousand? ”
    
      Answer. — ££ Part of them $5.66$ per thousand, and- part $8.50.”
    The plaintiff moved for a judgment upon the special finding in the sum of $544.08. The motion was overruled, and judgment rendered on the general verdict. Plaintiff appeals.
    
      John D. Rivers, for appellant.
    
      Parsons <& Lewis, for appellee.
   Beck, J".

We can, by inference or presumption, add nothing to and take nothing away from a verdict, either special or general. It must be sufficient in itself to authorize judgment thereon. And to justify a judgment on a special finding contrary to a general verdict, it must affirmatively appear that the latter is inconsistent with the former; it will not be presumed. Bonham v. Iowa Cent. Ins. Co., 25 Iowa, 328; Mershon v. The National Ins. Co., 34 Iowa, 87.

The special findings in this case are not inconsistent with the general verdict. The jury did not return the number of brick which they estimated at the different values found by them. . If a certain number be estimated at the value of $5.66f and the remainder at $8.50, the sum thus found will agree with the general verdict. Plaintiff’s counsel reaches his conclusion by presuming that a certain number were of the greater value. But no presumption can be exercised to overthrow the general verdict. We presume rather in favor of the consistency of all the findings. We must, therefore, hold that the number of brick of the different values as found by the jury agree with the general verdict. •

Affirmed .  