Appellant's third assignment of error, that “the court erred in overruling plaintiff's motion for a new trial,'' is too general and can not be considered.
His second assignment is abandoned because the special charge asked and refused is not found in the record.
His first assignment of error is the only one that can be considered. It does not complain of the principles charged by the court as the law of the case, but complains that “the court did not make separate and distinct the circumstances under which the plaintiff would be entitled to recover, and those under which the defendant would be entitled to recover, but blended the two together in such a way as to distract the minds of the-jury and mislead them as to the law applicable to the case.” We do not-find the charge subject to the criticism made. The jury are instructed to find for plaintiff if the piano was owned by her before her marriage, unless they should find for defendant under other instructions to be given. In the next paragraph of the charge they are told that she can not recover if with knowledge of the fact she accejited the money paid on the piano, or a part of it, without returning or offering to return to defendant the money so received by her, although she had not authorized the sale. Then the jury are told that receiving the money merely would not estop plaintiff unless she knew of the sale at the time.
We think the conditions upon which the plaintiff would be entitled to, recover are set forth in clear and distinct terms, and in such manner as not to confuse or mislead the jury. There is nothing abstruse or difficult to understand in the charge. A jury of ordinary intelligence would comprehend it without any trouble.
The error assigned is not well taken, and we conclude the judgment-ought to be affirmed.
Affirmed.
Adopted November 19, 1889.