McManus v. Watkins

Ellison, J. Plaintiff seeks to recover the amount of a note given by defendant to plaintiff as a part of the purchase price of a twine binder. Defendant defends on the ground that the binder was warranted to do good work and that it failed to do so and that defendant returned it to plaintiff. There was a judgment for defendant and plaintiff comes here. We are precluded from giving attention to much of the brief and argument of plaintiff aimed at alleged errors in the trial below, for the reason that plaintiff failed to refer to such errors in his motion for a new trial. The motion for new trial complains only of the giving of defendant’s instructions 1 and 2 and the refusal of plaintiff’s instruction number 4; and of permitting two witnesses to testify to the statements made by one McGruff, as to what was to be contained in a written report which was signed by defendant. The exception to the two instructions given for defendant is not pressed on this appeal and we will, therefore, consider the two remaining objections. The instruction refused for plaintiff was, in effect, a direction to the jury to find for plaintiff. Defendant had signed a written paper on the twenty-fifth of June, 1890, stating that the machine was “working satisfactorily.” The instruction declared that if the jury believed such was the case, that then defendant was estopped from setting up a breach of warranty and the finding should be for plaintiff. Plaintiff for his reasons in support of this says: First. That the admission was inconsistent with the evidence of the defendant. This may be readily granted, and yet it is no reason why the jury should not be left at liberty to consider the whole evidence in connection with this admission. Second. That this acknowledgment that the machine was working satisfactorily prevented plaintiff “from [95] reclaiming back from tbe Whitely Machine Company.” There is nothing in the case to show what contracts or rights existed on plaintiff’s part against the Whitely Machine Company, or, indeed of any relation whatever existing between them. . Third. That “it was an injury to plaintiff to have the admission in the report disproved.” Conceding this, it was only such an injury as results to any party from the consideration of competent testimony. We have found no objection to the trial which would justify our interference and we affirm the judgment. All concur.