Numerous exceptions were taken during the progress of the trial and presented by the record, but they all seem to have been abandoned on the argument except two, and these only do we deem it necessary to notice:
*343First — Did the court err in refusing to instruct the jury as requested by the appellants; and
Second — Was there error in excluding the testimony offered by appellants in support of their counter claim.
According to appellants’ theory, and their construction of the contract of March 30, plaintiff could not maintain an action on the note and order, and defendants could not be liable thereon until plaintiff had, by some sort of action by him brought directly against VanTassel, or in some other manner, settled the question of VanTassel’s claim to the property. On this theory they asked the following instruction:
“If the jury believe from the evidence that said plaintiff “ and defendant Wilber entered into the agreement in writing “ of date March 30th, 1874, to deposit said note and order “ with D. T. Bramble, and that it is still in full force and “ virtue, then before the plaintiff can recover in this action “ he must satisfy the jury from the evidence that he has made “ good his title to said personal property mentioned and “ described in said agreement, and especially as against said “ Clarence VanTassel.”
The court below in refusing this instruction, says: “This “ means that the plaintiff cannot recover in this action until “ by a separate action of some kind he shall have first estab- “ lished his title to the property ;he sold to Wilber as against “ Clarence VanTassel.” We think the court took the correct view of this instruction under the pleadings, and very properly refused it.
We cannot give to the contract the construction contended for by appellants. If we should, we would be greatly embarrassed in endeavoring to define the kind of action to be brought by Cheatham against VanTassel for the purpose of settling the rights of VanTassel to the property. Cheatham had disposed of the property absolutely — had no interest in it, nor right of possession; and any action he might have brought would have been dismissed on motion, as being instituted and prosecuted by a mere stranger and intermedler. He was, therefore, unable to bring a suit. VanTassel had no object in bringing one, for he, as appears from the plead*344ings, possessed himself of a portion of the property without the aid of legal proceedings. The property had been sold, and its possession transferred to Wilber; what was then his duty in the premises? Could he quietly acquiesce in the forcible seizure of the property by YanTassel, take no legal steps for its recovery, or to enforce his rights as against Yan-Tassel, and then plead the trespass of YanTassel as a defense against the payment of the note and order? Suppose he had paid the cash for the property, and taken from Cheatham a special warranty, what would have been his standing in court in an action to recover back the purchase price or for damages arising from a breach of the warranty without first having litigated YanTassel’s right to the possession of the property? The property was taken by YanTassel about the first of July, 1874, as appears from the record, and this action was commenced some time in February, 1876; and during all that time Wilber seems to have been wholly indifferent — took no steps to assert his rights or to recover possession, and from that indifference and failure on his part to assert his rights, we are wai'ranted in concluding that he was entirely willing that YanTassel should keep what property he had, if thereby he, Wilber, would be excused from pajdng the note and order. And may we not further conclude that the jury found the allegation in the complaint to be true, “ that Yan-Tassel acted in collusion with defendant Wilber, in obtaining possession of a part of said property in the night time, and bringing it across the Missouri River to this Territory.”
: The most reasonable construction ‘ to be placed on this agreement, and the only one, in my view, consistent with an honest purpose on the part of both parties is to regard it in the light of a special warranty against the claims of Yan-Tassel; and the object and purpose which the parties had in placing the note and order in the hands of D. T. Bramble, were to prevent their negotiation before maturity, and thereby save to defendants anjr defense which they might have against their payment, growing out of a failure of consideration or breach of the warranty. Any other construction destroys the mutuality and reciprocal character of the agreement and *345places it within the power of Wilber to postpone indefinitely the payment of the note and order.
Now, when suit is brought on this note and order, what in all good conscience, and within the spirit of this agreement, are defendants’ rights? To do just what they have done, plead a failure of consideration, and property in VanTassel; or in other words a breach of the special warranty.' The question of title to the property was~ fairly put in issue by the pleadings, and if the jury had found that VanTassel was the owner of the property at the time of its transfer from Cheatham to Wilber, then they could not have found for plaintiff. Defendants put this question of title in issue by their pleadings, and it has been found against them; what cause then have they for complaint? So far as the pleadings show, the only thing that could defeat plaintiff’s right to recover would be the failure of title in him, or the fact of title being in VanTassel at the time of the transfer; and I am wholly unable to discover why this cannot be determined as well in an action on the note and order as in a separate suit against VanTassel. It is, however, insisted that this instruction was proper and should have been given, even under this view of the case. All the instructions given by the court are not before us, and in their absence we must presume that the jury was properly instructed on this branch of the case.
We come to notice briefly the second point, viz.: was there error in excluding the evidence offered by appellants in support of their counter claim. This testimony, as shown by the record, is as follows:
“The said Wilber being on the stand, testified further that he paid twenty-five dollars at Lime Creek, Nebraska, for keeping stock and 'boarding drivers. And David McConahan, another witness for the defendant, having also testified that he settled part of the bill at Lime Creek, Nebraska, and that he thought it was twenty-five dollars, and that the charge was for taking care of the horse. And the said defendants stating their object to be to prove by said witness in support of their counter claim for payment of charges, and lien upon one of the horses included in the sale by plaintiff to Wilber, *346the said horse was kept at Lime Creek, Nebraska, by the station keeper McClaget, for several months, and offering to show what said keeping was worth and that said station keeper had said horse in his possession, and would not allow it to be taken away without the payment of his charges and claim to the amount of twenty-five dollars, and that said defendant Wilber paid the said station keeper McClaget- the said twenty-five dollars, and was compelled to in order to get possession of said horse. And thereupon the said plaintiff by his attorneys having objected to the reception of all evidence of said claims and lien for keeping said horse, and the defendants’ attorneys haying further asked the witness on the stand how long the horse was kept at Lime Creek, and how much it cost to keep him, and the plaintiff having objected to all such questions, and to the reception of any evidence in relation thereto, as being illegal and irrelevant, and objecting that defendants should produce said station keeper and prove by him the lien, if any, on said horse, the court sustained the plaintiff’s said objection.”
If all this evidence had been admitted, with all that was proposed in the offer, it certainly could not be urged as sufficient to support defendants’ counter claim. It might have tended if followed up and connected by the proper testimony, but standing alone it was wholly insufficient, and there was no offer to so connect it. Admitting that the horse was kept for a certain period of time, and that such keeping was worth twenty-five dollars, and these facts had been shown beyond a peradventure of doubt, would that have authorized a recovery on the counter claim without showing that the lien still attached at the time, and that the charge for keeping was a justly subsisting indebtedness, due and unpaid? I certainly think not. And how did the defendants propose to show this? Simply by proving the declarations of McClaget, the station keeper, made to third parties. That is nothing more nor less than hearsay, and under no circumstances, such as surrounded this case, could be deemed competent or admissible. The evidence standing alone was clearly irrelevant, and the court was right in excluding it, unless the defendants *347in proper manner offered to connect it by proper testimony, and even then it would be in the discretion of the court. Defendants might be required to introduce first their evidence establishing the lien, contract for keeping, and that the debt was still due and unpaid. It is claimed that the objection was sweeping, and precluded them from introducing any testimony in support of their counter claim. Taking the record all togéther we cannot put that construction on it. Plaintiff’s objection concludes by stating “ that defendants should produce said station keeper and prove by him the lien, if any, on' said horse.” This was reasonable and just. The witnesses had already testified that they settled with the station keeper McOlaget, and paid him the money; he was the man who, as alleged, had kept the horse, boarded the drivers, claimed the lien, and demanded pay before he would permit the horse to be taken away. Is it not clearly made to appear that his testimony would have been the best evidence, and should, therefore, have been produced, unléss it was not in defendants’ power, and this they do not claim. It is insisted that any one knowing the facts in relation to the counter claim could testify as well thereto as the station keeper. That is certainly correct; but as appellants did not produce or offer to produce any such witness, its consideration becomes immaterial.
There are one or two questions of practice presented by this appeal which deserve attention, and I shall content myself with a simple statement of what I conceive the rule to be without discussion. I regard it as well settled that appellate courts will not consider exceptions to instructions which were not taken at the time they were given, or at least before verdict, unless further time has been given by the court. The reason of the rule is too obvions. If the Judge has erred, his attention should be called to it in season to correct it, without being compelled to set aside a verdict, and put the parties and the court to the expense and trouble of a new trial. And a party should not be permitted to sit quietly by, with full opportunity of knowing and correcting the error, but saying to himself, if the verdict is in my favor I am con*348tent, if not, I have the means of setting it aside. “All good fidelity to the court ” certainly requires that the exception be taken before verdict, and if not so taken it shall be deemed waived.
Neither will an appellate court consider an isolated instruction, unless it appear from the record that it was the only one asked or given on the particular point to which it relates. As a general thing it is very difficult to determine the correctness of the ruling of the court below in giving or refusing an instruction, unless all the instructions given as well as those refused, on any one branch of the case are before us. And this, in every case, is the better practice.
Not finding any error in the rulings of the District Court, the judgment is
AFFIRMED.