Walker v. Humbert

The opinion of the court was delivered, July 3d 1867, by Thompson, J. — It is a sufficient answer to the 1st assignment of error to say that it does not appear that the judge was requested to instruct the jury on the subject of which his silence is complained of as error. We have often held this, and I will not stop to cite the authorities to show that a mere omission to charge on a particular aspect of a case is not error, where the attention of the judge has not been called to it with a request to charge on it. This error is therefore not sustained. 2. The court was right, on authority, in ruling that the payment of rent by the defendant’s tenants, in permanent improvements on the land, such as clearing, fencing, &c., which would necessarily enure to the plaintiff on his recovery in ejectment, ought not to be charged as profits received by the defendant. Improvements may be defalked against the claim for mesne profits: Ewalt v. Gray, 6 Watts 428; Morrison v. Robinson, 7 Casey 456. This error is not sustained. 3. But we are reluctantly compelled to reverse on account of the matter specified in the 3d assignment of error. The judge [409] charged in substance, that if no timber was cut on the land in 1858, and, if certain witnesses were believed, none was cut, the plaintiff could not recover. This was a binding instruction, and left out of view the fact that there was a saw-mill on the premises which it was proved cut a considerable amount of lumber after the plaintiff’s title accrued, and before his recovery in ejectment. A share of the profits of that was claimed ; and no matter where the timber was obtained, the plaintiff was entitled to have it, unless the value of the improvements, the mill, &c., put on the premises by defendant, absorbed it. It is possible they will; the jury, however, only could adjust that; but the judge prevented them by the binding direction or instruction noticed above. On account of this extraordinary oversight on part of the court, this little case must be tried a third time. Judgment reversed, and a venire de novo awarded.