The jury having found that the defendant made the agreement testified to by the plaintiffs' witness, shortly before removing the potatoes, the plaintiffs were, of course, entitled to recover the amount thus agreed upon. That question was properly submitted to the jury, and there was no exception to the charge in that respect. The exception which was taken to the charge was to that part of it, only, in which the judge stated that he had ruled out the evidence offered as to the insurance upon the potatoes, and gave a reason why the defendant was not entitled to introduce it. No exception could be taken to that part of the charge, as it related only to matter not before the jury. It was simply telling the jury that the defense offered had been ruled out in the course of the trial, and there was nothing before them for their consideration but the agreement which was alleged by the plaintiffs to have been made *Page 572 between them and the defendant shortly before the potatoes were removed. This was true, and furnished no ground of exception. The evidence offered having been ruled out, the question was not before the jury; and conceding that the judge in stating that fact, gave an insufficient or unjustifiable reason for having shut it out, no exception could be taken to it as it presented nothing for the jury to act upon.
The plaintiffs are therefore entitled to retain their verdict, and to have their judgment upon it, unless there was some error committed in the course of the trial, in receiving or rejecting evidence. The only ruling in this respect, complained of, is that rejecting the evidence offered of the contract of insurance of the potatoes against frost. That ruling was clearly right. It was new matter constituting, if true, a perfect defense to the action, but matter which should have been pleaded in order to entitle the defendant to prove it. No such matter had been set up or even hinted at in the answer.
The fourth answer set up distinctly an ordinary contract of bailment, and assigned as a breach the negligence and carelessness of the plaintiffs, by means of which the potatoes became frozen and injured. This is a contract entirely different from the one offered to be proved.
The contract set up in the answer, and the one offered to be proved, are altogether different, and there is no rule of law which will allow the one to be proved under a complaint or answer, counting upon, or setting up the other. They are essentially unlike in their entire scope and meaning. It seems to have been assumed by the Supreme Court that this evidence thus offered was rejected upon the ground that the defendant was estopped by reason of the new agreement from proving any other. But this does not appear from the case. No such ground of objection appears to have been taken by the plaintiffs' counsel, and the law certainly will not presume that an insufficient and untenable ground was taken, when one perfectly tenable is so obvious. It is for the party alleging error to see that the evidence of it is spread upon the record, or the contrary will be intended. It is *Page 573 quite true that had the defendant set up this contract in his answers he should have been allowed to prove it, and to show, if he could, that it was still subsisting, and had not been waived or annulled by a new agreement subsequently made. As long as it was an open question whether the new agreement had been made the defendant certainly was not estopped from attempting to establish a prior agreement, and that it was still in force. But the case presents no such question. There was no such ground of objection. Even admitting that what the judge said to the jury in his charge, is to be taken as evidence of the reason which operated upon his mind in rejecting the offer, it is no evidence of the ground of the objection taken by the plaintiffs' counsel. An erroneous reason given by the judge is never permitted to affect a decision otherwise correct. But this remark of the judge to the jury affords no legal evidence whatever either of the grounds upon which the question was decided, when it was raised and passed upon, or of the grounds of the objection taken. It may afford, perhaps, plausible grounds for conjecture, but nothing more. If the objection, or the decision, was placed upon any such ground, and the defendant intended to rely upon the ruling as erroneous, it should have appeared affirmatively in the case. But the exception is to the ruling generally, which for aught we can see was perfectly correct. Of course a new trial cannot be granted or sanctioned merely because the ground of the objection to evidence offered does not appear in the case. I am of the opinion, therefore, that the order granting a new trial is erroneous, and should be reversed, and judgment ordered for the plaintiffs on the verdict.
All the other judges being for affirmance,
Judgment affirmed. *Page 574