Hicks v. Revels

Beck, J. 1. Where in a suit for breach of contract the defendant demurred to certain portions of the petition claiming particular items as constituting a part of the damages sued for, and the demurrer was overruled, this was an adjudication that such items of damages were recoverable upon proper proof; and the court did not err in admitting evidence to sustain the claim for the particular items of damages referred to. (a) The adjudication against the defendant upon the demurrer can not be disturbed, as there is no proper exception assigning error upon the ruling upon the demurrer, or upon the pendente lite bill of exceptions to the ruling made by the court at the trial. 2. This suit was brought to recover damages resulting from the breach of a written contract for the sale of land; and the defendant set up that there was a subsequent contract modifying the contract sued upon. Tn . the motion for a new trial certain charges of the court are excepted to upon the ground that they had the effect of excluding from the consideration of the jury the contract made subsequently to the one for a breach of which suit is brought. The exception is without merit under the facts of the case; for, even if the subsequent contract was not open to the objection that it was merely an oral contract relating to the sale of land, the evidence in the record fails to show that there was any valuable consideration for the contract, moving the plaintiff to agree to the same. 3. The alleged newly discovered evidence relied upon as a ground for a new trial was not of such character as to affect the fináing of the jury in case a new trial should be granted. 4. The evidence authorized the verdict. Judgment affirmed. All the Justices concur.