Upon the facts determined at the trial the defendant is as matter of law entitled to judgment, as claimed in the brief statement, for the excess of the amount found as damages for breach of warranty over the amount due on the notes. Johnson v. Association, 68 N.H. 437. The exception to the denial of his motion therefor is sustained.
The exception was seasonably taken. A party is not called on to object or except until he is "aggrieved by the ruling, direction, or judgment of the superior court." Laws 1901, c. 78, s. 5. If at the conference the court had informed counsel he proposed to instruct the jury to limit their verdict to the amount due on the notes, the defendant's rights would have been protected by exception taken when the instruction was given. As the instruction was not given, there was no occasion for the defendant to object or except. He certainly was not "aggrieved" by the procedure adopted. The so-called ruling was merely an expression of opinion as to future procedure if a particular situation, which might never be presented, should thereafter arise in the case.
The conclusion not to instruct the jury to limit their verdict necessarily left the question of law open until it should arise, if it ever did. Rule 52, 78 N.H. 697, "All exceptions to the charge shall be considered as waived, unless taken and reduced to writing before the jury retire," has no application. The defendant is not aggrieved by anything told the jury or by the failure to instruct them to limit their verdict. The procedure was conformable to 'the law. A verdict is not set aside because of an error in assigning the reason for an existing rule of law unless it appears the jury was misled thereby. Blodgett v. Company,52 N.H. 215, 219; Carpenter v. Pierce, 13 N.H. 403. A fortiori a verdict is not to be set aside because procedure legally sound is based by the judge upon an erroneous conception of the law which is not communicated to the jury. The opinion of the court that the defendant could not recover upon a plea of recoupment had nothing to do with the trial as it was conducted. The procedure was precisely what it should have been if no doubt were entertained as to the defendant's right to recover. The view of the law expressed related solely to what should be done after the trial was over. If the court had gone further and expressed the opinion that the plaintiff would be entitled to a capias execution for any excess of the amount due on the notes over the amount found as damages by the jury, failure to except to such expression of opinion when made would not fore *Page 119 close the defendant. It is obvious that in such case the defendant's rights would be protected by objection when motion was made for such an execution.
The defendant has no occasion for a new trial of the issue submitted to the jury. The result of the one that has been had appears entirely satisfactory to him. Whether the plaintiffs can sustain an application for a new trial is not profitably considered until such an application is made and the facts found. If, as suggested in the plaintiffs' brief, counsel at the time thought the court in error, the ground upon which such application could be sustained is not now apparent. Upon this question no opinion is expressed or formed.
Defendant's exception sustained.
All concurred.