Davis v. Germaine

Warren, C. J.

The grounds of the motion for a new trial in this cause were, 1. Insufficiency of the evidence to justify the verdict, and that it is against law. There is no statement settled as required by law, and hence we cannot consider the objection. 2. That the court instructed the jury orally. If this be a fact, it has not been properly preserved by exception taken at the time, and is not presented in the record. 3. That the said oral instruction .is erroneous, and misled the jury.

The complaint sets out a written agreement between the parties, and avers a subsequent modification of its terms, made at the instance of defendant, and alleges the performance of the contract on his part, and failure on the part of defendant. The answer, in effect, admits the execution of the agreement and its subsequent alteration, but denies, simply, that such alteration was made at defendant’s request; avers performance by himself, and failure on the part of plaintiff to perform the agreement. The contract' being an entire one, the only issue presented was, as to the compliance of the respective parties with the terms of their agreement as finally made and acted on; and the court for failure of defendant to comply with the condition properly instructed the jury, in substance, that, if the plaintiff waived the terms of the agreement in the particular mentioned, he could not afterward rescind the contract for failure of defendant to comply with the condition waived. 4. That the instructions given at the request of defendant are erroneous.

We see no error, in the instructions given, sufficient to disturb the verdict.

The judgment is affirmed.

Exceptions overruled.

Knowles, J., dissented.