
    Maggie Kinner, Appellant, v. Charles R. Whipple and Others, Respondents.
    Third Department,
    November 25, 1908.
    Trial — waiver of right to go to jury by request for direction of verdict— appeal'—effect of failure to withdraw motion — insufficient exception.
    Where neither party requests that questions be submitted .to the jury and both ask for a direction of a verdict, the right to go to the jury is waived and they consent that the court may decide the questions of fact. Upon appeal the disputed facts are deemed to have been determined in favor of the party for .whom the verdict is directed.
    If after mutual motions for the direction of a verdict one party desires a submission of questions to the jury, he must withdraw his prior motion and specifically request the submission of facts to the jury.
    Colloquy between court and counsel examined, and.Md, that‘the plaintiff,’after motions for direction of a verdict in favor of both parties, had not requested to go to the jury on any specific question, nor excepted to any refusal to submit questions.
    Cochrane and Kellogg, JJ., dissented, with opinion.
    Appeal by the plaintiff, Maggie Kinner, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 30th day of September, 1907, upon the verdict of a jury, rendered by direction of the . court, dismissing the complaint upon the- merits.
    This action was brought to recover the liquidated damages provided in a written instrument dated April '21, 1900, wherein the plaintiff sold to the defendants all the marketable pine and red and black oak timber, of a certain size, then standing and growing upon about 400 acres of land. The defendants therein agreed to pay sevénty cents for each pine log and one dollar and fifty cents for the red and black oak, and “ If at any time the parties of the second part shall abandon said contract then the said parties of the second part shall pay for all timber cut by them, and in addition thereto the said parties of the second part shall pay the said party of the first part the further sum of $500 as fixed and liquidated damages arid not as and for a penalty.”
    It appeared that the defendants cut and removed timber during the five succeeding years, and until February, 1907, with the knowledge and consent of the plaintiff, and that she accepted and retained the amounts paid for timber cut after the stipulated time.
    At the conclusion of the evidence the defendants’ counsel moved for a nonsuit upon various grounds, and the motion was denied. Plaintiff’s counsel thereupon asked for a direction of a verdict for $500. The court asked, “ What dispute of fact is there to go to the jury ? ” Plaintiff’s counsel replied, “ Upon the question of the abandonment of the contract.” The court said, “ I do not see any issue to go to the jury. There is practically no dispute in the proof." What important fact is there in this case to go to the jury?” Plaintiff’s counsel then said, “ If they concede that the contract was abandoned and stated there was nothing there to do, they are estopped by that and we have no objection.”. The court again asked, “Is there any issue of fact you can point out?’’.and plaintiff’s counsel answered, “ That is the only issue of fact I can think of now.” The court then said, “ That being the only issue counsel can see, I think I shall have to direct a verdict one way or the other.” Defendants’ counsel then asked the court to direct a verdict and a verdict was directed in favor of the defendants.
    
      A. D. Arnold, for the appellant.
    
      T. D. Trumbull, Jr., and Frank D. Morehouse, for the respondents.
   Sewell, J.:

One of the questions presented by this appeal is whether the plaintiff' is precluded by the record from now raising the question that the court erred in not submitting any question of fact to the jury-

The rule is that where neither party requests to have any question of fact submitted to'the jury, but each asks that a verdict be directed in his favor, they waive their right to go to the jury and consent that the court shall decide every question of fact in the case. As was said by Judge Andrews in Thompson v. Simpson (128 N. Y. 283), “ The effect of a request by each party for a direction of a verdict in his favor, clothed the court with the functions of the jury, and it is well settled that in such case where the party whose request is denied, does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands as would the finding of a jury.” Upon appeal the disputed facts are deemed to have been determined in favor of the party for whom the verdict is directed. (Dillon v. Cockcroft, 90 N. Y. 649 ; Kirtz v. Peck, 113 id. 222; Smith v. Weston, 159 id. 194;' Westervelt v. Phelps, 171 id. 212.)

The plaintiff contends, however, that his suggestion that the question of the abandonment of the contract was a disputed fact was equivalent to a request to go to the jury upon that question. I think not. There was nothing in the suggestion or in what was said on that occasion to justify'tlie conclusion that he did not desire the court to decide every question of fact, and that he did so intend is apparent from the fact that he acquiesced in the proposed action of the' court.

If the counsel for the plaintiff supposed that there was a disputed question of fact, material to- the issue between the parties, and desired that it should be-submitted to the jury, he should have withdrawn his motion for a direction of a verdict and requested the submission of that fact to the jury. The request should have been specific so that- the court could have passed directly upon it. (Frantz v. Ireland, 66 Barb. 389; Winchell v. Hicks, 18 N. Y. 565; O'Neill v. James, 43 id. 84; Flandreau v. Elsworth, 151 id. 473, 482.)

I. think it would be torturing the language of plaintiff’s counsel to give it the effect claimed by him; but if it could be regarded as tantamount to a withdrawal of the request for a direction, and a request to go to the jury upon, the question of abandonment, there was no exception to a refusal. The exception was to the direction in favor of the defendants. If the counsel was dissatisfied with the conclusion or opinion of the court, that he would “ have to direct a verdict one way or the other,” he should have expressed his dissatisfaction by objecting or excepting to it. This he did not do. On the contrary, he apparently acquiesced in the conclusion and consented to a determination of the question suggested by the court. The exception to the direction of a verdict in favor of the defendants was not sufficient to notify the court of an objection to his disposing of the case. It only suggested to his mind that the counsel would have the verdict directed in favor of the plaintiff.

The trial justice is entitled to 'have his attention called to the precise thing wanted.or objected to, so that the court which reviews his decision may be clearly and distinctly apprised of the ruling complained of. If this is not done a court of review will not regard it. This rule is not too technical or severe. It has its foundation in a just regard to the fair administration of justice, which requires that when an error has been committed there should be an opportunity to correct it at once. It does not permit a party to lie by at the trial and take the chances of sncce'ss on the grounds stated by the court, and then, if he fails to succeed, avail himself of an objection wdiicli, if it had been stated, might have beemremoved. (Frantz v. Ireland, 66 Barb. 386; Tilden v. Aitkin, 37 App. Div. 28; Walsh v. Washington Ins. Co., 32 N. Y. 440; Chamberlain v. Pratt, 33 id. 52; Magee v. Badger, 34 id. 247; Walsh v. Kelly, 40 id. 558; Trimble v. N. Y. C. &. H. R. R.,R. Co., 162 id. 84.) “ Doubt as to the application of an exception defeats it, for a judgment should stand unless the appellant can point to a definite error raised distinctly by a specific exception.- The counsel excepting must lay his finger on the point ’ he seeks tó raise, so that neither the court nor the opposing counsel will be misled, but both may act advisedly and correct the error if on reflection, after the point is clearly presented, it is regarded asan error.” (Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416.) “ When it is intended to except to a specific proposition or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language entirely plain, so that there can be no doubt as to the real character of the exception, or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used if he deems it proper, and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply.” (McGinley v. U. S. Life Ins. Co., 77 N. Y. 495.) This practice is well settled and firmly established and the tendency is to increase strictness rather than to relaxation. (Brozek v. Steinway Railway Co., 161 N, Y. 63.) If, therefore, it be assumed that there was a request to submit and a refusal to do so, I am of the opinion that the court had the right to assume that the exception was taken to the direction of a verdict in favor of the defendants and not to the first proposition. As before observed, it did not bring to the mind of ■the court or of the opposing counsel that the plaintiff objected to the proposition “ to direct a verdict one way or the other.” If it had clearly and distinctly covered this proposition the point would have been understood and an opportunity would have been afforded for correction,, if the court- so desired, dr the opposing counsel wished to consent to the modification. This was not done, and I do not think it was intended. ' The exception, therefore, only presents for review the question whether there is sufficient evidence to uphold the decision in favor of the defendants, and as there .is no question in that regard it follows that the judgment should be affirmed, with costs.

All concurred, except Cochrane, J., dissenting in opinion, in which Kellogg, J., concurred. ¡

Cochrane, J. (dissenting):

By written contract made in the year 1900 plaintiff sold to the defendants “all tire marketable pine and red and black oak timber measuring seven inches or over, fourteen feet from the ground ” standing and growing on certain described premises of plaintiff. The defendants agreed to pay seventy cents per market log for the pine timber and one dollar and fifty cents per market log for the red apd black oak timber, and to cut and remove said timber within five years from the date of the .contract. Said contract contained the following provision: “ If at any time the parties of the second part shall abandon said contract then the said parties of the second part shall pay for all timber cut by them, and in addition thereto the said parties of the second part shall pay the-said party of the first part the further sum of $500 as' fixed and liquidated damages and not as and for a penalty.”

The defendants have removed all the pine timber. The controversy arises over their failure to remove .the oak. It is undisputed that defendants' have removed about 200 markets of oak, and according to the estimate of their witness Ackley, called by them for the purpose of showing the quantity unremoved, such quantity is 195 markets. So that on the defendants’ contention they have only removed about one-half of the oak timber required by their contract.

The plaintiff’s witness Finch, called for the same purpose, estimated that more than 500 markets of oak remained on the premises measuring not merely seven inches as provided by the contract but eight inches in diameter fourteen feet from the ground. Plaintiff’s evidence also tended strongly to establish the fact that defendants refused to remove this oak timber although requested to do so about seven years after the contract was made.

The jury might easily have found from the evidence that defendants had failed to remove about three-quarters of the oak as required by their contract and that they had intentionally abandoned their contract because of the difficulty of performing the part so abandoned. ' The pine timber was all removed, but the oak which was obviously more difficult to manipulate and remove remained. Of course the benefit to plaintiff of this contract was not alone in the purchase price of the timber but also in having her land cleared therefrom; and the refusal of defendants to remove this oak timber, scattered as it is over 400 acres, constitutes a striking failure to perform the contract in an essential feature. The case, therefore, should have been submitted to the jury, and should not have been disposed of by the court as a question of law.

The judgment, however, is upheld on the sole ground that the plaintiff by her conduct at the close of the trial consented that the case should be decided by the court rather than by the jury. After defendants had moved for a nonsuit and the court had denied such motion, plaintiff’s counsel moved for a direction of a verdict for $500. That motion was not decided by the court, and was apparently abandoned by plaintiff. The record shows that the following immediately took place: “ The Court: What dispute of fact is there to go to the jury ? Mr. Arnold (plaintiff’s counsel): Upon the question of the abandonment of the contract. The Court: That may be a legal question. What specific fact can you ask the jury to decide % Mr. Arnold: That the defendant Palmer stated to William Kinner and his sister that he was through and there was not anything left to be lumbered under that contract; if that is true, the plaintiff is entitled to judgment. The Court: I do not see any issue to go to the jury. There is practically no dispute in the proof. What important fact is there in this case to go to the jury? Hr. Arnold: If they concede that the contract was abandoned and stated there was nothing there to do, they are estopped by that and we have no objection. The Court: Is there any issue of fact you can point out? Hr. Arnold: That is the only issue of fact I can ■ think of now. The Court: That being the only issue counsel can see, I think I shall have to direct a verdict one way or the • other. Hr. Trumbull (defendants’ counsel): I ask the Court. to direct a verdict in favor of the defendants on the ground that the plaintiff has wholly failed to prove the cause of action alleged in the complaint. [Motion granted; exception.] ”

The rule is unquestionable that if both parties at the clo'se of a case move for its disposition by the court as a matter of law they are deemed to have consented that all questions of fact as well as Law be decided by the court; but it is equally well settled that a party may recede from such motion even after it has been decided adversely to him and stand on his right to have a, question of fact submitted to the jury if he so requests. In the present instance, plaintiff’s counsel most clearly insisted that the question of abandonment was one for the jury. Such request lost none of its force because in form it was made in response to the court’s queries. The court clearly must have understood that he was insisting on his right tó go to the jury. Probably the learned trial justice would be the last one to assert that he did not so understand the situation. In fact he expressly stated and put his refusal to submit the case to the jury on the ground that the question of abandonment was a legal question. . In Koehler v. Adler (78 N. Y. 290) it is said : “ Parties may consent, however, that the court-may pass upon all questions Loth of fact and law, and if they do they will be bound, and when both parties ask a direction this court will ¡iresume such consent. In this case the presumption is repelled by an express request to go to the jury upon a question of fact. Besides the court did not put the denial to submit the question of fact to the jury upon the ground that the defendant’s counsel had irrevocably waived the right, but it was denied presumably upon the ground claimed here that the cause of action.was proved by uncontradicted evidence, and that there was no question to submit, and that point is now before us for adjudication.” So here the court did not put its denial to submit the question of fact to the jury on the ground that plaintiff had waived such right but expressly stated that the question of abandonment was one of law. .The plaintiff duly excepted to the directed verdict and I am unable to see that her right to go to the jury was not fully protected. The rule that questions of fact as well as law are deemed to have been submitted to the court for determination where both parties ask the court to dispose of the case as one of law is somewhat strained and artificial. As appears from the above quotation from the Court of Appeals such rule rests on a presumed consent of the parties when they make such motions that the case be disposed of as one of law, but such presumption is repelled by an express request thereafter made to go to the jury upon a question of fact. Such request was made in this case, and to hold that the plaintiff waived her right to go to the jury would be the extension of the said rule beyond the point where it has. ever yet been carried.

I think the judgment should be reversed.

Kellogg, J., concurred.

Judgment affirmed, with costs.  