Hurley v. Wilky

ROSS, C. J. The appellees contend that, notwithstanding the erroneous instruction placing the burden of proof upon appellant, the case should not be sent back for a new trial, but that final judgment should be here entered as directed. Upon a reconsideration, we think the contention is right. As stated in the prevailing opinion, the minds of the parties did not meet — the evidence clearly shows this; and, if that be true, no cause of action exists in favor of appellant. The erroneous instruction was therefore immaterial. It is suggested by appellant that, upon a retrial, evidence might be forthcoming to show that appellee, Wilky, did know he had bargained for Arizona Finance stock. We are bound by the record as made and presented to us, and may not consider what might have been urged upon a motion for a new trial in the court below. We are satisfied that the order should have been one of affirmance, and it is accordingly now made. FRANKLIN, J., concurs.