[3] What is said above is based upon the theory that the measure of damages contended for by the appellant, acquiesced in by respondent, and adopted by the trial court, is the correct measure. We do not wish to be understood as approving or disapproving that rule. That measure became the law of this case, whether right or wrong, by reason of the fact that no exception was taken to the portion of the instructions embracing that subject.

[4-6] Appellant next contends that the evidence is insufficient to sustain the verdict in that the damages awarded are inadequate. He contends that the jury, in finding for him upon all of the issues, must have found that respondent made every one of the representations alleged in the complaint, and that under the alleged representation that the stock had a market value on the Stock Exchange in Chicago, the jury could not have found for appellant in a less sum than $3,500. We do not understand that a general verdict which finds upon all the issues in favor of the plaintiff is necessarily conclusive that the jury believed the defendant to have made every one of the alleged representations. While it is true that by section 241, Code Civ. Proc., an issue of fact arises upon a material allegation in the complaint controverted by the answer, the ultimate and vital fact was that of deceit. While under the rules of pleading it is not sufficient to simply charge deceit, and the various representations must be specifically set forth, and, while as a question of pleading, fraud or deceit is said to be a conclusion of law (Bliss, Code Pl. § 211), still that is the end to which the specific representations are directed. By section 1203, Civ. Code, actual fraud is always a question of fact. Where there is more than one representation the jury may believe one or more of them, and the general verdict is not conclusive as to any particular one of them. On page 273 of his brief appellant's counsel expressly states, "The real issue was whether the defendant had practiced fraud upon the plaintiff, and, if so, the extent of plaintiff's damages." Plaintiff had it in his power, subject to the judicial discretion of the court, to have had from the jury an expression upon whether defendant made

such special findings. Again the trial court properly charged the jury (among other things) that if it found from all the evidence that the defendant made either one of the several representations, it should find for the plaintiff. It may well be that the jury did not believe that the defendant made the representation as to the market value of the stock in Chicago, but nevertheless, under the instructions, it was bound to return a general verdict for plaintiff if it believed that the defendant made any one of the representations. The effect of appellant's contention would be that the jury could not find generally for the appellant unless it found that defendant made all of the alleged representations. From the amount of the verdict we can only infer that the jury believed that the defendant made such of the representations as would justify its verdict.

In the case of Miles v. Penn Mut. Life Insurance Co., 23 S. D. 400, 122 N. W. 249, this court held that the words "all the issues" in a verdict of the jury were not controlling, and that by the amount of the verdict it was clearly apparent that the jury found for the defendant instead of for the plaintiff, as specified.

* *

In Smith v. Cleaver, 25 S. D. 351, 126 N. W. 589, this court said: "Appellants' proposed findings * above quoted relate solely to allegations of matters in the answer which are purely evidentiary, and not the ultimate, facts. All these evidentiary circumstances were received in evidence by the court, and were doubtless given their legitimate weight and effect in the determination of the final and vital issue of fraudulent conveyance."

In Farmers' Bank v. Bank of Canton, 8 S. D. 210, 65 N. W. 1070, the syllabus by the court concisely states the rule as to the effect of a general verdict as follows: "When sustained by competent evidence, a general verdict upon all the issues is conclusive as to every averment essential to a recovery contained in the pleading of the prevailing party." The verdict then not being conclusive as to the making of every alleged representation, but only such as are essential to a recovery, was it so inadequate as to entitle appellant to have it vacated?

[7] In Abbott's Civil Jury Trials (3d Ed.) p. 769, the learned author lays down these rules: "And a verdict in an action to recover damages capable of ascertainment by some standard of measurement, but which awards an amount not only not commensurate with, but glaringly disproportioned to, that justified by the evidence, is invalid. But where there is no such standard of measurement and the damages are unliquidated and the amount to be awarded is discretionary with the jury, a verdict cannot be deemed objectionable for inadequacy merely because, in the opinion of the court, more might have

In this case the evidence is very voluminous, covering more than 250 pages of the printed briefs; but there is evidence upon which the jury might have based its verdict if it did not believe that defendant made the alleged representation as to market value on the Stock Exchange in Chicago. There was in this case no standard of measurement and the damages were unliquidated. We are unable to conclude that in arriving at its verdict the jury was acting under the influence of passion, prejudice, or gross mistake.

[8] Appellant next contends that the court erred in receiving evidence touching the financial condition, the physical operations, the stock sales, the reorganization, and various other phases of the Cox Multi-Mailer Company, and also the Standard Assembler Company, at times before and after the date of the transaction in question, and so remote therefrom as to be inadmissible and of such a character as to greatly mislead the jury. On this point the learned trial court charged the jury as follows: "Evidence has been introduced here in regard to circumstances leading up to the transaction, as to the history of these corporations, even down to a comparatively recent period, in order that the jury may determine therefrom what was the probable value of the stocks of these two corporations at the time of the transaction in question, for where the stock transactions are between individuals, and not on the open market, in the sense of a stock exchange, and there are only occasional transactions, an extended scope is sometimes necessary to determine all of the facts, to determine what was the value at the time of the stocks." We think the court ruled correctly as to the admission of this evidence. Hindman v. First Nat. Bank, 112 Fed. 931, 50 C. C. A. 623, 57 L. R. A. 108; Whiting V. Price, 172 Mass. 240, 51 N. E. 1084, 70 Am. St. Rep. 262; Collins v. Chipman, 41 Tex. Civ. App. 563, 95 S. W. 666; Campbell v. Hillman, 15 B. Mon. (Ky.) 508, 61 Am. Dec. 195.

tive that issue. The question, therefore, as to whether defendant might also be liable, provided he had no reasonable ground for believing the representations to be true, is academic. It is not error to fail or refuse to give an instruction which, although it correctly states an abstract principle of law, is not applicable to the evidence or to the theory upon which the case was tried. Quale v. Hazel, 19 S. D. 483, 104 N. W. 215; Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066, 39 Am. St. Rep. 783; Parliman v. Young, 2 Dak. 175, 4 N. W. 139, 711.

We have carefully examined the other assignments of error which relate to the admission or exclusion of testimony, and find no merit in them. A proper discussion of them would greatly lengthen this opinion, and would not tend to elucidate any principle of the law of evidence, which is not well established.

The question which is before us, upon consideration of the whole record, is not whether we, as jurors, would have returned the verdict that was returned. The question is whether the plaintiff has had a fair and impartial trial. We are of the opinion that he has.

The judgment and order denying a new trial are affirmed.

KRAKOWSKI v. WASKEY et al. (Supreme Court of South Dakota. Feb. 18, 1914.)

1. STATUTES (§ 285*) – CONSTRUCTION-CONTRADICTION BY HOUSE Journal.

280, relates to the submission to the electorLaws 1913, c. 254, which was House Bill ate of the question of the sale of intoxicating liquors, provides that, if a majority voting on such proposition shall vote in favor of a sale, rolled bill on file in the office of the Secretary the sale shall be licensed. Held, that the enof State is conclusive upon the courts as to the contents of House Bill 280, and hence the statute cannot be impeached by an entry in the House Journal showing the loss of an amendment to add the words "voting on such proposition"; this being particularly true as the place for the insertion of the phrase was not identified.

[Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 17, 27, 384, 385; Dec. Dig. § 285.*]

2. INTOXICATING LIQUORS (§ 35*)-ELECTIONS -MAJORITY.

Under Laws 1913, c. 254, relating to submission to the electorate of the question of the licensing of intoxicating liquors, and providing that, if a majority of the voters voting on such proposition shall vote in favor of the sale, it shall be licensed, ballots illegally marked so that they could not be counted for any purpose cannot be counted in determining the number voting on the proposition, and a majority of the legal ballots cast is sufficient to authorize the sale of intoxicants.

Election contest between Paul Krakowski and George H. Waskey and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Joe Kirby, of Sioux Falls, for appellants. H. H. Holdridge and Chas. J. Porter, both of Madison, S. D., for respondent.

GATES, J. This is an election contest. The question is whether at the annual election held at Madison, S. D., on April 16, 1913, the proposition of granting permits for the sale of intoxicating liquors at retail was carried or was defeated. At said election there were deposited in the ballot box 826 ballots

upon this question. Of these 826, there were 409 in favor of granting such permit, and 400 against. Sixteen of the ballots were so illegally and improperly marked that they could not be counted, and one was a blank. The ultimate question is this: Are those 17 ballots to be considered in determining the number of voters "voting on such proposi

tion"?

The

[1] Before discussing that question, our attention is called in the respondent's brief to a claim that the words "voting on such proposition" were not contained in the act as it passed the Legislature, viz.: Chapter 254, Laws 1913, being House Bill 280: Said act is in part as follows: "That section 2856 of the Revised Political Code of 1903, as amended by chapter 166 of the Session Laws 1903 be amended to read as follows: * * question shall be submitted upon a separate ballot conforming to the general election laws of the state upon which ballot there shall be printed the words: 'Shall intoxicating liquors be sold at retail? Before which words shall be printed the words 'yes' and 'no,' and at the left of each of such words 'yes' and 'no' shall be placed a square or circle and any voter in favor of the sale of such liquors as aforesaid shall mark in the square or circle at the left of the word 'yes' with a cross (x), any voter opposed to such sale shall mark in the square or circle at the left of the word 'no' with a cross (x) and if a majority of the voters of such township, town or city voting on such proposition shall vote in favor of such sale of intoxicating liquors at retail, the corporate authorities thereof shall grant permission for such sale for the ensuing year in accordance with the provisions of this act." It is claimed that the italicized words "voting on such proposition" were surreptitiously inserted in the enrolled bill after it had gone through the legislative hopper. The law theretofore existing upon this subject omitted the words "voting on such proposition," and read as follows: "And if a majority of the voters of such township, town or city shall vote in favor of such sale of intoxicating liquors at

Our attention is called to page 1023 of the permanent House Journal of 1913, where we find: "Mr. Ruckman moved that House Bill No. 280 be referred to a committee of one, with instructions to amend as follows: After the word 'city' in line 36 of section 1 of the printed bill, insert the words 'voting on such proposition.' Mr. Patrick moved the previous question, which motion prevailed. The question being on the motion to amend motion was lost." It appears from the Senas made by Mr. Ruckman, and being put, the ate Journal that the bill passed the Senate

without change. that this record shows that the words "voting on such proposition" were not in the bill as passed. Our attention is also called to chapter 167, Laws 1909, which provides for a permanent journal of the two legislative bodies, and contains the following: “And when so compiled, issued, bound and published in book form as journal of the Senate the same, and with front page as above set and journal of the House, with indexes to forth, such published books shall be and constitute the original evidence to be used in all courts, and shall constitute the original and permanent record of such legislative proceedings, and it shall not hereafter be necessary to copy or record such proceedings in any other book or record whatever." It is therefore claimed that under the prior liquor election law as construed by this court, and under the present law, if the words "voting on such proposition" be omitted, the said 17 votes should be counted, and that, as 409 is not a majority of 826, the proposition did not prevail at the election.

It is therefore claimed

An examination of the House Journal reveals the fact that nowhere therein is there any copy of the bill as proposed or as passed. How can we determine that the motion made by Mr. Ruckman was intended to supply the above italicized words in the act as published in the 1913 Session Laws. Let it be noticed his proposed amendment was that the words "voting on such proposition" be inserted after the word "city" in line 36 of section 1 of the printed bill. Now the word "city" occurs ten times in the bill as it appears in the Session Laws. How can we say which particular word "city" occurred in line 36 of the printed bill? We have no right under the law to refer to a printed copy of the bill, especially as none was offered in evidence, and it would have been inadmissible if offered.

The bill as it was filed in the office of the Secretary of State, and as it now appears in the Session Laws, contains the certificate by the secretary of the Senate and by the chief clerk of the House that it was the bill that was passed. That was the bill that was approved by the Governor. An inspection of it shows that it was correctly printed in the