
    STRITE GOVERNOR PULLEY COMPANY v. PATRICK J. LYONS.
    
    May 21, 1915.
    Nos. 19,119-(65).
    Charge to jury — forms of verdict.
    1. The error of the court, if any was committed, in making confusing statements in his charge to the jury as to the forms of verdict to be used in certain cases, is without prejudice if, subsequently and before finishing his charge, the court clearly instructs the jury how it should proceed and under what circumstances each form of verdict should be used.
    Refusal of court to accept verdict.
    2. Craven v. Skobba, 108 Minn. 165, 121 N. W. 625, followed to the effect that, “when the jury returns a verdict which is not justified in any view of the evidence and law -of the case as embodied in its instructions, the court may refuse to accept it and require the jury to return and report a proper verdict.”
    Return of verdict — failure to summon counsel.
    3. It is not reversible error if the court in a civil action fails to notify absent counsel when the jury returns into the court room, either for additional instructions or to return the verdict.
    Verdict sustained by evidence.
    4. Record examined and the evidence held sufficient to sustain the verdict.
    Verdict not influenced by passion or prejudice.
    5. There is nothing presented by the record from which it can be inferred that the verdict was given under the influence of passion or prejudice.
    
      Action in tbe district court for Hennepin county to recover $972.50 for services and material. The case was tried before Waite, J., who denied tbe motion of defendant Strite to dismiss tbe action as to him, and a jury wbicb returned a verdict for $1,064.28. From an order denying bis motion for a new trial, defendant Lyons appealed.
    Affirmed.
    
      Booth & McDonald, for appellant.
    
      Benton & Morley and Paul J. Thompson, for respondent.
    
      
       Reported in 152 N. W. 765.
    
   Schaller, J.

In February, 1911, George T. Strite and appellant Lyons signed an agreement, wherein appellant agreed to furnish tbe capital to procure patents for a device denominated a “plow lift,” to build not to exceed 12 machines, to pay for tbe making of patterns and after demonstration of tbe device in actual field operation to furnish $15,000 to build a factory, if deemed advisable by himself and Strite. Lyons was to have full charge of tbe marketing and distribution of tbe product. Tbe defendant Strite agreed to complete tbe drawings for tbe device, to apply for a patent at Washington and to supervise tbe construction and demonstration of tbe device and to convey to appellant one-half interest in tbe patents when procured.

About tbe middle of tbe following August, tbe defendant Lyons, Strite being present; gave an order to tbe plaintiff for tbe manufacture of one of these “plow lifts.”

Tbe plaintiff built tbe machine, wbicb was duly delivered and placed on exhibition at tbe Minnesota State Fair of that year.

Subsequently and about the eighth of September, plaintiff received an order for tbe manufacture of six additional plow lifts, wbicb plaintiff proceeded to construct and bad ready for assembling and delivery between that time and tbe spring of 1912.

Tbe account for the first machine was kept by tbe plaintiff in tbe name of “Lyons and Strite.” Another account was opened in tbe name of tbe Strite Manufacturing Co., tbe first entry on wbicb appears to have been made November 25, 1911.

Defendant Lyons concedes liability to tbe plaintiff for the amount shown by tbe account of “Lyons and Strite,” about $130. He denies liability for the six additional machines, claiming that the same is the debt of the Strite Manufacturing Company.

The evidence on the part of the plaintiff tended to show the making of the contract of February, 1911, and that the order given in August was given by the defendant Lyons. That the order for the six additional plow lifts was also given by the defendant Lyons, and that he agreed to pay for the same. Plaintiff’s evidence further tended to show that the items under the heading, “Strite Manufacturing Co.,” were charged in that way so as to keep an accurate account of the expenses of manufacturing these six additional plow lifts.

Defendant’s evidence tended to show that a corporation was organized for the purpose of manufacturing the Strite “plow lifts” and other machinery, tools and implements, the name of such corporation being the “Strite Manufacturing Co.,” the time of its commencement, as provided by its articles, the second of October, 1911. The articles were executed and acknowledged on the thirteenth day of September, 1911, and filed in the office of the secretary of state on the same day.

Defendant’s evidence further tended to show that appellant did not agree to pay for the six additional plow lifts; that some conversation was had between the president of the plaintiff corporation and Lyons and Strite, relative to the forming of the Strite Manufacturing Co., shortly before the execution of the articles of incorporation, and that the cost of manufacturing the six additional lifts was to be a charge against that corporation.

The case was submitted to a jury, which rendered a verdict for the plaintiff and against both defendants for the total amount of both accounts. Appellant Lyons moved for a new trial and appeals from the order denying his motion.

The assignments of error challenge the sufficiency of the evidence to justify the verdict, charge that it was given under the influence of passion and prejudice, that the court erred in certain parts of the charge delivered to the jury, and in giving additional instructions or explanations to the jury in the absence of counsel.

Assuming the truth of testimony and proofs on behalf of the plaintiff (and that was a question for the jury), we cannot say that the verdict was not supported by the evidence. Nor is there anything in the record from which we could infer that the verdict was given under the influence of passion and prejudice. Neither can we say that prejudicial error was committed in the rulings made by the trial court on the admission or rejection of evidence.

The other errors complained of pertain to the charge of the court, and to certain instructions to the jury in answer to questions propounded to the court by members thereof.

The court charged the jury in reference to the contract (Exhibit 1), which is the written contract entered into between the two defendants. We have examined the charge and cannot say that any error was committed hy the court in construing that contract.

Toward the end of his charge and while the court was instructing the jury relative to the forms of verdict which he had prepared, the defendant made an admission conceding liability for the first plow lift. The court thereupon made several confusing statements to the jury as to the form of verdict which they might use in a certain case. There is no doubt that some uncertainty was produced by this action, but no exception was taken, and, before finishing the •charge, the court clearly instructed the jury how they should proceed and under what conditions each form of verdict was to he used. This ■cured the error, if any was committed. Dunnell, Minn. Pr. § 1117.

After the jury had been considering the case for some time, they returned into the court room with a proposed verdict for $800 with interest from May 22, 1912. The court inquired of the jury whether the verdict was arrived at in one of two ways; either by the omission of items shown by the books, or by a compromise of any kind, stating that he did not wish them to answer which way. He was informed by the jury that it was arrived at in one of the ways indicated. Thereupon the court declined to receive the verdict. He fold them that he would prepare another form of verdict along the lines of the one rejected. Questions were asked of the court by certain of the jurors, which the court answered and thereupon the jury again retired and subsequently returned with a verdict for the full .amount claimed, with interest.

An examination of these proceedings satisfies us that the action of the trial court in this last respect was in no way injurious to tbe rights of tbe appellant. Tbe court was justified in declining to. accept a verdict wbicb it was apparent could not be sustained because not based upon tbe evidence introduced on tbe trial. “A court bas tbe undoubted right to refuse to accept a verdict wbicb is not in accord with tbe law and evidence by wbicb tbe rights of tbe parties are to be determined.” Craven v. Skobba, 108 Minn. 165, 121 N. W. 625.

Nor can we say that it was error for tbe court to re-state in some respects tbe issues between tbe parties, either in answer to questions, by jurors, or of bis own motion. Under tbe evidence, tbe verdict bad to be for tbe plaintiff, either for tbe cost of tbe first plow lift or for tbe cost of tbe seven. None of tbe items of cost was disputed, and the jury would have no right to include certain of tbe undisputed items and reject tbe others.

Complaint is made that tbe proceedings subsequent to tbe first, retirement of tbe jury were bad in tbe absence of counsel. Tbe court, is not obliged to notify counsel when tbe jury returns into court,, either for additional instructions, or when they return their verdict. “Tbe trial of a case is not concluded until a verdict bas been rendered or tbe jury discharged. It is tbe duty of parties and counsel to remain in, or be represented at, tbe court during its sessions until tbe trial is ended; and it is no part of the duty of tbe court to send after-parties or counsel who have absented themselves from tbe court room before tbe trial of their cause is concluded.” Hudson v. Minneapolis, L. & M. Ry. Co. 44 Minn. 52, 46 N. W. 314; Reilly v. Bader, 46 Minn. 212, 48 N. W. 909.

Order affirmed.  