Van Every v. Flanders

Opinion by Hall, J. ■ The defendant complains in this court of the refusal by the trial court to give the declarations of law asked by him, and especially of the refusal to give the third declaration of law so asked. As shown by the record there seems to have been no question of law in this case, but only a question of fact namely, did the livery stock in controversy, as contemplated by the parties to the agreement, contain twelve or only ten buggies. The tendency only of the evidence introduced by both parties is set out in the bill of exceptions, and not in the evidence itself. I. The first declaration of law as asked by defendant, we will presume, was properly refused by the court; and that presumption is strengthened and in no way rebutted by the tendency of defendant’s evidence as shown by the record. There is nothing in the record to show that the trial court erred in such refusal, but all that the record does show is in favor of such action by the trial court. Evidence tending to show that defendant agreed to turn in, as a part of the consideration of said trade, a certain livery stock, is no support for a declaration of law, stating the effect of a sale, by others than the defendant, of the said stock to plaintiff. II. The court was clearly right in overruling the demurrer to the evidence. There was evidence tending to sustain the issues on the part of the plaintiff. III. The presumption to be drawn by us being in favor of the action of the court below in refusing the third de* [245] claratiou of law, we cauuot say that evidence introduced by defendant, tending to show that he agreed to turn in the livery stock, supported that declaration declaring the effect of a trade in which a certain livery stock was to be sold and delivered to plaintiff. From the record, as we have already said, the only issue in this case seems to have been an issue of fact. No evidence offered by either party seems to have been excluded. And we do not think that, by the refusal of the trial court to give the declarations asked by defendant, we can infer that that-court tried the case on the theory that the defendant was bound by the terms of the bill of sale executed by the firm of Stewart & Flanders, without regard to the terms of the agreement between him and plaintiff.' But,, on the contrary, we think ourselves bound to make every inference authorized by the record in favor of the action of the trial court. We feel authorized to infer that the evidence admitted in this case tending to show that there were only ten buggies in said livery stock, and that plaintiff got those ten buggies, was considered by that court for what that court thought it worth. The judgment of the circuit court is affirmed. All concur.