Estate of Weir

MELVIN, J.

John Seiler filed a claim for $1305.68 against the estate of John Weir, deceased. The items were six hundred dollars, board and lodging for two years; four hundred and eighty dollars for nursing, sewing, and mending for a like period, and $225.68 for goods, money, material, and labor furnished. The claim was allowed by the administrator of John Weir’s estate and approved by the judge of the probate court. Peter Weir, a brother of the decedent, filed a contest which was tried according to the provisions of section 1636 of the Code of Civil Procedure. The questions of fact were presented to a jury and general and special verdicts were returned. The general verdict was in favor of the claimant, John Seiler, for $765.68. By the special verdict the jury answered “yes” to four questions by which the jurors were required to determine whether or not the claimant had furnished the sort of service, material, etc., demanded by him. To questions regarding the value of the things for which payment was demanded the jury replied that the board and lodging for two years was worth twelve dollars and fifty cents per month; nursing and mending ten dollars per month; goods, materials, money and merchandise, $117.95; work and labor, $107.73. The aggregate of these items is $765.68, the amount of the general verdict. The court received and filed the verdicts and caused them to be entered upon the minutes of the court, but it appearing to the court that the special verdict

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was inconsistent with the general verdict and that upon the special verdict John Seiler was entitled to judgment for the full amount demanded, such a judgment was entered for $1305.68, together with costs and disbursements to the amount of $133.30. The judgment was entered some days after the trial and reception of the verdicts and after motion of the claimant’s counsel for such a judgment, which, by stipulation, was heard “only upon the record consisting of said Seiler’s claim, the contest thereto, the general verdict and the special verdict.” This appeal is from the order granting said motion and from the judgment.

It is apparent that the inconsistency between the general and special verdict, asserted by the claimant’s counsel and found by the court, is not one of arithmetic. Both respondent and the court 'evidently held the opinion that the