EVERETT PIERCE v. A. SCHADEN et al., 62 Cal. 283

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.