Cooper v. Altimus

The opinion of the court was delivered, by Sharswood, J. The 1st assignment of error is, that the court erred in submitting to the jury the existence of a contract without defining to them what as matter of law would be a contract. This specification is contrary to Rule VII., 6 Harris 578. A judge] however, is not required to give a legal definition of every term he employs in his charge. It may be assumed that men know that a contract means an agreement between,two or more persons. If there is anything in the evidence falling short of this, it is the duty of the party to frame a point containing a request for instructions, and present it to the court. That an omission to charge where there is no prayer for specific directions is not assignable for error, is well settled: Churchman v. Smith, 6 Whart. 146, and many other cases down to Burkholder v. Stahl, 8 P. F. Smith 371. The 2d specification is, that the court erred in charging the jury that the proposition was like an order — -assent to which would be implied from the act of compliance with it if the staves were delivered in pursuance of it and of the description and quality specified. The proposition here referred to evidently was that contained in a letter by the defendant to the plaintiff in evidence, dated October 18th 1865. This letter must be read in connection with the previous correspondence between the parties. •< Cooper had written to Altimus to know if he had any staves to sell, or could procure any from his neighbors. To this Altimus had replied, “ If you let me knowhow much you could give per hundred I could get four or five thousand, with some heading.” To which the letter or proposition of October 18th 1865 responds, “ If they are rift staves and good, I will give you $35 per thousand, delivered at the station.” Now, this certainly was a conditional order, or agreement to take the staves if of the required 'quality, and delivered at the station. Altimus might safely act upon it, and if he sent the staves to the station, Cooper could not refuse, after notice to receive them there, without showing that his order had not been complied with, or an unreasonable time had elapsed. There was no error, therefore, in the charge in this respect. The 3d assignment is, that the cpurt erred in submitting to the 'jury whether by any act- or conduct of Mr. Cooper, the plaintiff Mr. Altimus had sustained loss, ^when there was no- evidence on that subject at all. This specification is also contrary to Rule VII. There is the more reason to insist upon the enforcement of the rule in this case, because, upon an examination of the charge, it does not appear that any such question was distinctly submitted to the jury, nor was it necessary. In stating the rule as to the obligation of the vendee if he objects to receive an article to give notice to the vendor — and that — upon his neglect that he would be bound to pay, he adds, “ by which he sustains inconvenience or loss,” and a similar expression occurs in another part of the charge. [491] It is hypereriticism to complain of language of this character. If the defendant thought that the law was upon the facts that Altimus could not recover without showing that he had sustained loss by the refusal of Cooper to receive .the staves, and that no evidence had been given of such loss, he should have requested the court in writing so to instruct £he jury. Judgment affirmed.