Courier-Journal v. Howard

Candlek, J. 1. The original plea set up the defense of failure of consideration ; and whether or not this defense was at first pleaded with sufficient particularity, the subsequent amendments, which were allowed without objection, cured any defect of this nature in the original, and rendered it good as against the demurrers which were filed. 2. The request to charge was properly refused, because the effect of such an instruction would have been to authorize the jury to disregard the plain terms of the contract sued on, and to base their verdict on an understanding between the defendant and the plaintiff’s agent, which was not expressed in the written agreement. 3, The.ground of the motion for a new trial complaining of the refusal of the court to allow counsel to ask a named witness a question therein set out can not be considered, because it does not appear from the motion what the wit [379] ness would have answered. Hendrick v. Daniel, ante, 358, and cit. The evidence of the defendant made out a complete defense to the action against him. The jury believed it, and rendered a verdict in his favor, which was approved by the trial judge, and this court will not disturb it. Argued. December 18, 1903. Decided January 13, 1904. Complaint. Before Judge Sheffield. Early superior court. February 9, 1903. W.' C. Worrill and H. H. Sheffield, for plaintiff. Clarence Wilson, J. I). Kilpatrick, and G. 'D. Oliver, for defendant. Judgment affirmed. All the Justices concur.