delivered the opinion of the court.
1. Considering these appeals in reverse order, it is contended by plaintiff’s counsel that an error was committed in submitting to the jury the first interrogatory which it is asserted involved an issue of law that should have been determined by the court, and that though the written contract may not have been actually delivered, the inquiry took from the jury a consideration of the question as to whether or not the alleged agreement was acted upon by the parties and thereby ratified so as to become a binding obligation, and for these reasons the first judgment was improperly set aside. A test-writer, referring to such interrogatories remarks:
“If the questions asked are defective, the court’s attention should be called to the fact before they are submitted, otherwise they will not be closely criticised on appeal. But if questions are omitted which a party thinks should be submitted, he cannot raise the question by objecting.to the submission of the draft. His *481remedy is by submitting an additional draft containing tbe facts on which he desires findings ’ ’: Clement-son, Special Verdicts, p. 69. This author further observes : “Objections to form must be made at the time of submission, otherwise it will be presumed that there was assent to the submission of questions as drawn by the court”: Id. 193.
As no objections to the interrogatories submitted were interposed, nor additional drafts suggested, so as to call to the court’s attention the facts now urged in respect to a possible ratification of the terms of the alleged contract, all questions relating to that subject were thereby waived.
2-4. In support of the assertion that the first interrogatory involved a question of law, reliance is had upon the case of White v. White, 34 Or. 141, 158 (50 Pac 801, 55 Pac. 645), where over objection, an issue was submitted requiring a special verdict as to the delivery of a deed, and it was held that the investigation demanded, properly related to a probative fact upon which the rights of the parties depended and was determinative of the case, and that the interrogatory did not refer to mere evidentiary facts, which might afford only prima facie proof of some other fact. In that case the inquiry submitted, omitting names, was in effect: Did the deceased in his lifetime voluntarily place the deed in question in possession and control of the defendant, the grantee named in the sealed instrument? An objection was interposed to the question on the ground that it was inconclusive, immaterial and misleading. The jury answered the inquiry in the affirmative.
"When there is any controversy upon the subject, the delivery of a deed is always a question of fact: 2 Jones, Beal Prop., § 1220. In Flint v. Phipps, 16 Or. 437, 439 (19 Pac. 543), Mr. Justice Stbahan in speak*482ing of a deed remarks: ‘ ‘ The question of delivery is purely a question of fact.” In State v. Leonard, 73 Or. 451, 483 (144 Pac. 113, 681), Mr. Justice Ramsey in referring to this subject observes:
“The question of delivery is always a question of fact for the jury where there is any conflict in the evidence in relation thereto.”
A text-writer, discussing this matter, says:
“Some courts have stated broadly that delivery is a question of fact. Taken literally, however, this declaration is, perhaps, too sweeping, as ignoring the occasional instances in which the undisputed facts establish delivery as a matter of law. And strictly speaking the question is rather one of mixed law and fact, for from the detail of facts established the legal conclusion must be drawn, though, since the jury 'usually must find a delivery or not, or else the circumstances from which the court may draw its conclusions, the question may properly be denominated, as has been done in a number of cases, largely one of fact, being so much so, indeed, that the decision of the lower court is conclusive unless the specific facts found conclusively establish the contrary”: 8 R. C. L. 976.
The rule established sustains the statement that an interrogatory should not be submitted to the jury which calls for a conclusion of law (38 Cyc. 1912, 1917), and in order to sanction a judgment rendered thereon, special verdicts must contain statements of ultimate facts: Id. 1921. As no objection was interposed to the form of the inquiry, an answer to which required a consideration and determination on the part of the jury of the ultimate fact relating to the delivery of the written contract and not the mere evidentiary facts from which the fact, incapable of further analysis, was to be deduced, no error was committed in the respect alleged.
*4835. It is insisted by plaintiff’s counsel that the second interrogatory assumes that the defendants agreed to convey the land to the plaintiff, and that this inquiry is so inconsistent with the first, that an error was committed in setting aside the original judgment. From the colloquy between the court and plaintiff’s counsel, as hereinbefore set forth, the issue seems to have been narrowed to a consideration of the question as to whether or not the defendants delivered to his, client the written contract, and if no surrender thereof had been made then the plaintiff’s recovery was limited to $400, the amount paid on account of the alleged purchase, from an acceptance of which sum an oral agreement to sell and convey the land might reasonably be inferred, and this being so, a breach thereof required a return of the money thus received. This is the construction which the trial court seems to have given to the second interrogatory, the language of which is not inconsistent with the first.
It is argued by plaintiff’s counsel that the jury unmistakably intended to award his client a recovery of $1,600, and hence the judgment originally rendered therefor was erroneously set aside. The answers to the first and third interrogatories are inconsistent when viewed in the light of the questions propounded by the court to plaintiff’s counsel and his replies thereto. Since he thus solemnly asserted in open court that only $400 could legally be recovered, in case the jury should find the written contract was never delivered, that declaration should be binding.
6. When special findings made by the jury are inconsistent with the general verdict, the findings are controlling : Section 155, L. O. L.; Rolfes v. Russel, 5 Or. 400; Loewenberg v. Rosenthal, 18 Or. 178 (22 Pac. 601); Leavitt v. Shook, 47 Or. 239 (83 Pac. 391); Palmer v. Portland Ry., L. & P. Co., 62 Or. 539 (125 *484Pac. 840); Parker v. C. A. Smith Lumber & Mfg. Co., 70 Or. 41 (138 Pac. 1061); Herrlin v. Brown & McCabe, 71 Or. 470 (142 Pac. 772). In consequence of the inconsistency in the answers to the interrogatories mentioned, the judgment based upon the general verdict was properly set aside, instead of disregarding the answer to the first question returned by the jury and rendering judgment on the general verdict.
7. Exceptions were taken by plaintiff’s counsel to the court’s ruling- that a counterclaim, interposed as a defense to the maintenance of the action, was sufficient and in sustaining the contention of the defendants, H. L. Edmunson, Millie Blighton and E. A. Maltzan that each signed the writing intended as a contract in order to release an inchoate right of curtesy or of dower in and to the premises described in the complaint, and that neither of them was liable for a breach of the agreement. It will be remembered that the cross-appeal was taken from the order setting aside the first judgment. Such direction of a court is deemed to be a judgment or decree for the purpose of being reviewed: Section 548, L. O. L. The only question presented by an appeal from an order setting aside a judgment is the action of the court in that respect, and as no final determination upon the merits of the cause then remains, any other ruling in relation to the issues must necessarily be held in abeyance until a judgment thereon has been regularly rendered. The alleged assignments of error in these particulars will, therefore, not he considered.
8, 9. The defendants ’ counsel contend that since no objections were made or exceptions taken to any part of the charge to the jury, the court erred in setting aside the judgment ultimately rendered in favor of their clients and in granting a new trial. It will he remembered that the trial court, deeming its unchal*485lenged instructions in respect to an alleged delivery of the written contract were insufficient properly to enable the jury to understand the rules of law governing the surrender of the possession of a writing, set aside the second judgment and granted a new trial upon its own initiative. The jury were charged inter alia, as follows :
“Before this written contract can be binding upon the defendants, there must be an execution and delivery of the contract. If you find there was not a delivery of the contract, or if you find it was an unauthorized delivery of the contract, then I instruct you that the plaintiff would not be entitled to recover, and it would be your duty to return into court a verdict for the defendants.”
From the language thus employed it will be seen that a distinction was made between the terms ‘ ‘ execution ’ ’ and “delivery,” while our statute declares,
“The execution of a writing is the subscribing and delivering it, with or without affixing a seal”: Section 777, L. O. L.
The execution of a document therefore necessarily includes its delivery. The instructions do not attempt to define or explain in any manner what in law constitutes the delivery of a writing, which surrender of possession has been held to mean any act, word or conduct from which may reasonably be inferred an express or implied assent on the part of one party to the document that it should irrevocably pass beyond his control, and then or subsequently to be ultimately possessed by the other party to the instrument: Fain v. Smith, 14 Or. 82 (12 Pac. 365, 58 Am. Rep. 281); Shirley v. Burch, 16 Or. 83 (18 Pac. 351, 8 Am. St. Rep. 273); Allen v. Ayer, 26 Or. 589 (39 Pac. 1); Hoffmire v. Martin, 29 Or. 240 (45 Pac. 754); Tyler v. Cate, 29 Or. 515 (45 Pac. 800); Payne v. Hallgarth, 33 Or. 430 *486(54 Pac. 162); Swank v. Swank, 37 Or. 439 (61 Pac. 846); Pierson v. Fisher, 48 Or. 223 (85 Pac. 621); Burns v. Kennedy, 49 Or. 588 (90 Pac. 1102); Reeder v. Reeder, 50 Or. 204 (91 Pac. 1075); Foote v. Lichty, 60 Or. 542 (120 Pac. 398); Thrush v. Thrush, 63 Or. 143 (125 Pac. 267, 126 Pac. 994).
The rule formerly obtained in Oregon that the granting or denial of a motion for a new trial was a matter resting within the discretion of the trial court, whose action upon the application would not be disturbed upon appeal, except in case of a manifest abuse of what should have -been an exercise of sound judgment. Article VII, Section 3, of the organic law of this state, as amended, declares:
“In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict”: Gen. Laws Or. 1911, p. 7.
Since that' amendment became operative it has been held that the granting of a new trial was not a matter of discretion; that an order for the rehearing of a cause could not be sanctioned except when the court had committed some error, which if properly excepted to or seasonably called to the attention of the court and the motion denied, would have been sufficient cause for a reversal of the judgment if it had been brought up for review; and that under such circumstances the trial court upon motion or súa sponte possessed adequate power and was authorized within the prescribed time, to correct the error which it had committed by granting a new trial: De Vall v. De Vall, 60 Or. 493 (118 Pac. 843, 120 Pac. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291); Taylor v. Taylor, 61 Or. *487257 (121 Pac. 431, 964); Sullivan v. Wakefield, 65 Or. 528 (133 Pac. 641); Smith & Bros. Typewriter Co. v. McGeorge, 72 Or. 523 (143 Pac. 905); Rudolphs. Portland Ry., L. & P. Co., 72 Or. 560 (144 Pac. 93); Frederick & Nelson v. Bard, 74 Or. 457 (145 Pac. 669); McGinnis v. Studebaker Corp., 75 Or. 519 (146 Pac. 825, 147 Pac. 525, Ann. Cas. 1917B, 1190, L. R. A. 1916B, 868); Delovage v. Old Oregon Creamery Co., 76 Or. 430 (147 Pac. 392, 149 Pac. 317); Pullen v. Eugene, 77 Or. 320 (146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474); Brewster v. Springer, 79 Or. 88 (154 Pac. 418); Wakefield v. Supple, 82 Or. 595 (160 Pac. 376); Speer v. Smith, 83 Or. 571 (163 Pac. 979).
The rule thus established ought in our opinion to be enlarged- so that, when by reason of some misapplication of the principles of law to which no exception has been taken, or in consequence of some inadvertence to which attention has not been called, if the court is satisfied that a party has not had his cause properly presented, justice which should be dispensed in all cases sanctions the setting aside of a judgment rendered upon a verdict and the granting of a new trial, when such action of the lower court does not violate Article VII, Section 3, of the Constitution of Oregon respecting the quantum of evidence.
In this instance, the action of the court in granting a new trial in consequence of its failure properly to instruct the jury in relation to the delivery of the alleged written contract, brings this case within the rule last announced, and this being so the orders appealed from are affirmed. Affirmed.
McBride, C. J., McCamant and Benson, JJ., concur.