Crow v. Stowe

Gray, C. J. The instructions to the jury, of which the plaintiff complains, take substantially different aspects upon the exceptions presented by him to the judge who presided at the trial, and upon the exceptions proved before the commissioner. Besides the different color given by the transposition of the sentences, the first instruction complained of, as stated in the exceptions presented, was no further qualified than by telling the jury that, if the viciousness of the horse after the sale was such as to convince them that it existed before, it was evidence which the jury might “ consider upon the question whether the viciousness existed at the time of the sale; ” whereas the exceptions established show that the jury were instructed that, in such a state of the proof, “ the evidence would warrant them in finding that in fact it did exist at the time of the sale.” The instruction as stated by the plaintiff only made" such evidence competent to be considered; the instruction as proved to have been given made it sufficient in law to support a verdict for the plaintiff. As to the last instruction, the bill of exceptions tendered omits to state that there was any evidence of the plaintiff’s mismanagement ; and also omits to state that part of the instruction given, which was favorable to the plaintiff ; each of which might have [157] an important bearing upon the fitness and application of the instruction complained of. The plaintiff therefore fails to prove that the exceptions alleged by him were substantially conformable to the truth. They were therefore rightly disallowed by the presiding judge, and the plaintiff is not entitled to have the validity, either of the exceptions presented, or of the exceptions proved, considered by this court. Bottum v. Fogle, 105 Mass. 42. Cullen v. Sears, 112 Mass. 299. Petition dismissed.