Walker v. . Cooper

Allen, J. Four exceptions are considered in the plaintiffs’ brief, and all others are deemed abandoned. The first three relate to rulings upon the evidence, and none of these can be sustained. The evidence of the defendant as to a conversation with a deceased agent of the plaintiffs is not condemned by Revisal, see. 1631 (Roberts v. R. R., 109 N. C., 670; Gwaltney v. Assurance Society, 132 N. C., 925), and it was clearly competent' to prove by the witness Smithwick that he had heard the defendant complain of the failure to furnish iron, in corroboration of the evidence of the defendant, for which purpose alone it was admitted. The exception to the introduction of the examination of the defendant, taken under Revisal, see. 865, cannot be considered, because we are unable to see that it was in any way prejudicial to the plaintiff, as there is no statement of what was in the examination, and it was omitted from the record by direction of the appellant. It would seem, however,' that the exception could not have availed the plaintiffs, as they introduced a part of the examination, and further, the statute (Revisal, sec. 867) provides that the examination “may be read by either party on the trial.” The charge of his Honor is subject to the criticism that he did not state explicitly the measure of damages, but when the part excepted to, for this reason, is considered as a whole, we do not think the jury could fail to understand that they were to award the defendant, as damages, the net profit he would *539 bave madeUnder tbe contract, if any. He stated fully tbe contentions of tbe parties, and instructed tbe. jury substantially tbat tbe defendant was entitled to recover damages if tbe plaintiffs bad agreed to furnish iron and bad failed to do so; tbat tbe defendant contended tbat if tbe contract bad been performed by tbe plaintiffs, be would bave made a clear profit of $1.50 per thousand; tbat tbe plaintiffs contended tbat bis profits would bave been nothing, or in any event less than $1.50 per thousand; and tbat they must ascertain tbe amount of this damage under tbe fourth issue. If tbe plaintiffs thought more specific instructions necessary, it was their duty to call it to tbe attention of tbe court by prayers for instruction. Simmons v. Davenport, 140 N. C., 407; Ives v. R. R., 142 N. C., 131. The case of Wilkinson v. Dunbar, 149 N. C., 20, sustains tbe ruling tbat tbe defendant is entitled to recover tbe profits be would bave made, but it is not authority in favor of tbe plaintiffs upon tbe exception taken, as in tbat ease a new trial was ordered on account of an erroneous rule laid down in tbe charge for estimating damages, and not because of failure to charge. We find No error.