Thomas Frazer Lumber Co. v. Henson

WALKER, P. J. — On the trial the complaint, which contained counts on account, for merchandise, goods, and chattels sold, and for work and labor done, was sustained by evidence tending to show a balance due from the defendants (the appellants here) for lumber sawed and delivered by the plaintiff, under the terms of a written contract with the defendants, and for extra services, incident to the performance of that contract, rendered by the plaintiff at the instance and request of the defendants. The defendants, on the other hand,- offered evidence tending to- show that they had overpaid the amount due to the plaintiff, and to .support'their pleas of payment and set-off. As to the assignments of error based upon rulings on evidence, the counsel for the appellants contents, him [627] self Avith references to those rulings in groups, accompanied by vague suggestions that they involved error, Avithout specifying the respective grounds upon Avhich the several different rulings are deemed erroneous. Each ground of error is not so separately presented, as is required by. the rule of practice governing the preparation of a brief for the appellant (Code, p. 1508, rule 10), as to put upon the court the duty of reviewing the several rulings. We do not feel called upon to undertake a search for errors which counsel for the appellants has not pointed out. We may remark, however, that we have discovered no prejudicial error in either of those rulings. The written charge requested by the defendants was properly refused. Under that charge the jury would have been required to find a verdict for the defendants, if they found that the plaintiff had sawed for the defendants the number of feet of lumber mentioned in it, though they also found from the evidence that the plaintiff had sawed for the defendants under the contract a much larger quantity of lumber, and that a balance was due him for the quantity of lumber actually sawed and for extra services rendered at the instance and request of the defendants. That charge may be subject to criticism on other grounds, which need not be mentioned. The conflict in the evidence Avas such as to make it fairly a question for the jury whether a balance was due from the defendants to the plaintiff, and the court was not in error in overruling the motion for a neAv trial on the grounds assigned. Affirmed: