(dissenting). — I am unable to agree with the conclusions of the majority in the foregoing opinion. The instruction complained of by appellant, and set out in said opinion, while, perhaps, capable of the construction given it by the majority, was such as to equally warrant the construction contended for by the appellant. This being so, it is impossible to say how the jury understood it. Hence it was not such an instruction as the appellant was entitled to. It related to one of the most vital questions in the case, and he was entitled to have a positive, unambiguous instruction as to the law relating thereto. If he did not get it, he is entitled to a reversal of the judgment unless it affirmatively appears that he could not have been injured by the error of the court in that regard. It is conceded that the finding of the jury as to the value of the property, having been only three hundred dollars, was entirely unsupported by the proofs, and that for that reason such finding must be disregarded.
The other reason suggested why such instruction could not have injured the appellant, was that the jury specially found that the respondent had no knowledge of the fraudulent intent of his father at the time he purchased the property. In my opinion this finding is not sufficient to show that the appellant was not injured by the instruction above referred to. It is in no manner made to appear therefrom that the jury in arriving at the general verdict might not have been influenced by their understanding of the instruction. It is a fact well known to all who have had anything to do with juries that they usually arrive at their general verdict first, and then answer the special interrogatories submitted to them, and in so doing so resolve every doubtful question of fact as to sustain the general verdict.
There is another reason why I think appellant is entitled to a new trial. The practically undisputed proofs showed that at the time respondent purchased the property there *75was at most only an unsettled account between himself and his father, on which there was due not to exceed §200. It further appears that at the time of such purchase this indebtedness was not wiped out, but instead thereof a note for §300 was given in full payment for the property. For this reason it seems to me that many of the instructions given by the court were inapplicable to the evidence submitted to the jury, and had a tendency to mislead unless they had been supplemented by further instructions in the line of the requests made by appellant and refused by the court. I think that justice demands a reversal of the judgment, and a new trial.
Stiles, J., concurs.