This is a motion by the appellants upon suggestion of diminution of record to have inserted in and made a part of the transcript on appeal the instructions given by the trial court to the jury.
[1] The action is one involving alleged misrepresentations in the sale of cattle. Certain of the issues were submitted to a jury and the parties seem to sharply disagree *Page 61 as to whether the entire verdict was advisory in nature, as to just what was submitted to the jury and as to whether or not the trial court adopted the verdict of the jury in making its findings. In their opening brief the appellants claim, among other things, that the proper measure of damages was not applied and that certain evidence relating to damage was erroneously received. The respondent, in his brief, contends that this evidence was properly admitted for an entirely different purpose. In making this motion the appellants contend that the instructions as given bear a direct relationship to the evidence received, disclose the purpose for which the same was admitted, and will be of assistance to this court in the determination of the appeal on its merits. The motion further asks that the appellant Seaboard Dairy Credit Corporation be permitted to raise a point in its closing brief which was not raised in its opening brief, namely, that the court erred in its instructions to the jury as to the proper measure of damages. It is contended that the consideration of this point is made necessary by certain contentions made by the respondent in his brief, bearing upon the purpose for which certain of the evidence was admitted.
If, as claimed, the court submitted a part of the issues to the jury and adopted its verdict thereon, or if the verdict was not merely advisory as to certain issues, the instructions given may be material and of assistance in determining the merits of the appeal. The case is not before us on its merits at this time and we do not feel called upon to make a detailed study of the record on this motion and again when the case is finally submitted. If it should develop on final consideration that these instructions, and any possible error in the giving of them, have no proper bearing on the decision of this appeal, no harm will result to respondent from the granting of this motion.
The motion is granted, the addition to the transcript to be made at the expense of the appellants and the appellant corporation is given permission to raise the additional point referred to.
Marks, J., and Jennings, J., concurred. *Page 62