Woddail v. Austin & Holliday

Warner, Judge.

This was an action brought by the plaintiffs against the defendant on a contract for the purchase of a kiln of brick, and on the trial the main question at issue between the parties, was whether the bricks were sold by the plaintiffs to the defendant at $6 00 per thousand, at kiln-count, or at that price per thousand as the same were delivered to the defendant. On this point in the case the evidence was contradictory and conflicting. The jury found a verdict for the plaintiffs. It also appears in the record that after the commencement of the suit; the plaintiffs had been declared bankrupts. A motion was made for a new trial on the ground that the Court erred in saying to the jury that if they found for the plaintiffs, they should find their verdict in the name of the plaintiffs, for the use of their assignee in bankruptcy, and suggested to them the form of their verdict. We find no error in the ruling of the Court on this point in the ease. The verdict and judgment will be a sufficient protection to the defendant, and it was not a matter of concern to her who got the money, if she owed it. Besides, it does not affirmatively appear that her legal rights were in any manner injured on the trial by this ruling of the Court as to the form of the verdict. It appears in the record that evidence was admitted on the trial without objection, that the defendant had sold the bricks at a higher price than she had paid for them. After the conclusion of the charge of the Court to the jury, the defendant’s counsel orally requested the Court to charge them, that the sale of the bricks at a higher price than the defendant paid for them could not influence them in finding a verdict, which request the Court refused.

It is not by any means certain that it would have been proper for the Court to have expressed an opinion in regard to the evidence admitted before the jury, without objection, that it could not influence their verdict. If the defendant had desired to have got rid of that evidence before the jury, the proper manner to have done so, would have been to have moved the Court to rule it out when it was given in, and not to have admitted it without objection, and then to request the Court to charge the jury that they could not consider that evidence; for if the charge had been given as requested, and the jury had found a verdict for the defendant, the plaintiffs might have complained that the Court had invaded the province of the jury, by instructing them that they were not to consider the evidence which was before them without objection. The Court was bound to consider the rights of the plaintiffs, as well as those of the defendant, in charging the jury in relation to the evidence before them. ■ But the charge of the Court as given to the jury, excluded from their consideration any other price for the bricks than the contract pice. The Court charged the jury, that “ if it should appear to you from the testimony, that the plaintiffs sold and agreed to deliver to the defendant a kiln of brick, to be taken at kiln-count, and at a specified price per thousand, then plaintiffs would be entitled to recover, if the bricks were delivered, whatever the kiln amounted to at kiln-count, at the contract price. If the testimony should satisfy you that plaintiffs sold and agreed to deliver to defendant brick at an agreed price per thousand, and that, on that contract, they delivered brick, then you will find for the plaintiffs the value of the brick so delivered at that contract price.

We find no error in this record which will authorize this Court to interfere with the discretion of the Court below in overruling the motion for a new trial in this case.

Judgment affirmed.