
    [No. 8,432.
    Department Two.]
    December 5, 1882.
    EVERETT PIERCE v. A. SCHADEN et al.
    Verdict as to Matters not in Issue—Surplusage—Motion for Judgment in Amount Exceeding Verdict.—Action against indorsers to recover four hundred and sixty-six dollars and thirty-seven cents, and interest due on a promissory note, the execution of which was admitted. Under the pleadings the only issues for the jury were as to presentation, demand, refusal to pay, and notice. The jury returned a verdict in the following form: “We, the jury in the above entitled cause, find for the plaintiff, and assess his damages at the sum of two hundred and ninety-four dollars and fifty cents.” The plaintiff moved for judgment for the amount of the note and interest, which motion was denied, and judgment was entered for the amount named in the verdict.
    
      Held: The plaintiff was entitled to his motion. The jury had nothing to do with matters not in issue, and a verdict referring to such matters is, so far, surplusage. So far as the verdict related to matters in issue, it was in favor of plaintiff. The Court should have computed the amount due on the note for principal and interest, and rendered judgment accordingly.
    Appeal by-plaintiff from the judgment of the Superior Court of the County of Sacramento. Denson, J.
    Action on promissory note. The note was given for the sum of five hundred dollars, with interest at one and one fourth per cent, per month, from February 24, 1876, until paid. The complaint admitted the payment of the interest to May 24, 1876, and also a payment of two hundred and five dollars and fifty cents, on September 10, 1878. The prayer of the complaint was for judgment for the sum of four hundred and sixty-six dollars and thirty-seven cents, and interest thereon, from September 10,1878, according to the terms of the note, and for costs. The amount claimed at the time to be due and for which the plaintiff moved the Court to give judgment was the sum of seven hundred and ten dollars. After the denial of his motion plaintiff filed a bill of exceptions and took this appeal. The other facts are stated in the opinion of the Court.
    
      L. S. Taylor, for Appellant.
    The verdict of the jury on matters not in issue is mere surplusage, and should be disregarded. (O’Brien v. Palmer, 49 Ill. 74; Austin v. Jones, Gilm. (Va.) 356-7; Vin. Abr. 736; Tevis v. Hicks, 41 Cal. 127; Fitzpatrick v. Himmelmann, 48 id. 588; Benedict v. Bray, 2 id. 254; 4 B. Monroe (Ky.), 6; Proffatt on Jury Trial, § 445; C. C. P., § 656; Watson v. Damon, 54 Cal. 278; McLaughlin v. Kelly, 22 Cal. 220.)
    
      Freeman & Bates, for Respondent Schaden.
    The only point made by the plaintiff is that the verdict was upon a matter not in issue, and should be disregarded. But there were three questions in issue, viz.: whether the note was presented and payment of the whole or any part demanded; whether payment of the whole or any part was ever refused by Gardener, and whether defendant had notice of any presentment, demand, or refusal. Under these issues it might have appeared, either from plaintiff’s or defendants’ evidence, that payment of a part only of the note had been demanded, or that plaintiff’s notice of dishonor to defendants had stated that only a part of the note remained unpaid, or that plaintiff had notified defendants that he should look to them for the payment of some sum less than two hundred and ninety-four dollars and fifty cents. In either of these cases judgment could have gone for plaintiff only for the amount for which he demanded payment, or for the amount which he notified defendants remained unpaid. Or it may be that, at the trial, plaintiff consented to have payments allowed which were made pendente kite or otherwise, notwithstanding they were not pleaded. If such evidence had been offered or such consent given, it would not appear in the judgment roll. The verdict of the jury ought to be presumed to be right, as long as the plaintiff does not choose to attack it by any statement of the evidence or proceedings. It may be urged that because the jury found for the plaintiff as to part, it ought to be deemed to have found for him as to the whole. With like force it may be said that the jury found for defendants as to part of the claim, and therefore it must be that they found there was no demand, notice, etc., for otherwise their finding should have been for the whole. The defendants might as well move for a judgment wholly exonerating them, as for the plaintiff to move for a judgment for the whole sum claimed by him.
    The amount of recovery must always be found by the jury, and there is no authority for judgment for any other amount. (C. C. P., § 626; Watson v. Damon, 54 Cal. 278.)
    It is evident that the jury did not intend to find a verdict for seven hundred and ten dollars, and it is probable that rather than do so they would have found for the defendant. Neither party has considered it safe to attack the finding, nor to move for a new trial. This Court ought not to assume the province of the jury and direct judgment for seven hundred and ten dollars. Neither ought this Court to direct a new trial, for that has not been sought by either party.
   The Court:

This was an action against indorsers to recover the amount due for the principal and interest of a promissory note. The answer denied the presentation of the note to the maker, the demand of payment, the refusal to pay, and notice of presentation, demand, and refusal. There was no denial of the execution or indorsement of the note, and no plea of payment. There was, therefore, no issue to go to the jury except as to presentation, demand, refusal to pay, and notice. The jury returned a verdict in the following form: “We, the jury in the above entitled cause, find for the plaintiff, and assess his damages at the sum of two hundred and ninety-four dollars and fifty cents.” The plaintiff moved for judgment for the amount of the note and interest, which motion was denied, and judgment was entered for the amount named in the verdict. The plaintiff was entitled to his motion. The jury had nothing to do with matters not in issue, and a verdict referring to such matters is, so far, surplusage. So far as the verdict related to matters in issue, it was in favor of plaintiff. The Court should have computed the amount due on the note for principal and interest, and rendered judgment accordingly.

Judgment vacated and cause remanded, with instructions to make computation and render judgment in accordance with this opinion.  