Menzies v. Kennedy

By the Court, Whitman, C J.: The first and second points of appellant, claiming the evi - dence to be insufficient to warrant the verdict, must fail for the reason that there was a conflict of evidence, and therein substantial testimony to sustain the verdict. The law, touching the different theories of appellant and respondent, was fairly stated, and the jury found for the latter. Of course a verdict so found must stand, there being no other error. The court did not err in refusing to allow the witness Mallon and the appellant to answer the questions stated in appellant’s third point; their evident object was to vary and control a written instrument. The cases of Pierce v. Robinson, 13 Cal. 116, and others, analogous, are not in point; in such, oral testimony has been allowed to establish an equity superior to the writing ; here there was no such pretense. Again, if the ruling was error, it was cured; because at another stage of the trial, the desired evidence came in; the record shows that all the parties to the contract, or having knowledge thereof, told all they wished about it. The court erred in charging the jury thus. If you believe from the evidence that the defendant did not sell said stock, and after a demand made for the delivery of said stock by the plaintiff the defendant failed or refused to deliver to the plaintiff the stock, plaintiff is entitled to recover the highest [160] market value of the stock from the time of demand until the commencement of this action. The measure of damages was incorrect. Boylan v. Huguet, 8 Nev. 845. But as the testimony fixes only two prices for the stock, six dollars and a half at the date of appellant’s demand and nine dollars at a subsequent period, and the jury despite the instruction gave the lowest instead of the highest price, the error becomes immaterial. Had the jury given the higher sum, there being no other error an appellate court would require a reduction of the amount of the verdict to correspond to the law and the facts, else a new trial. That reduction is already an accomplished fact, from the original action of the jury; hence there is no purpose in disturbing the verdict. The law given was wrong, and the jury disobeyed it; the appellant did not suffer thereby. It is objected to the language of the court in the instruction to follow, that it finds a fact, namely the breaking up of the original pool. This is the instruction : “ If the plaintiff consented to place bis stock in the original pool, which pool was subsequently brolcen up * The portion objected to is underscored for the purpose of reference. The construction sought is a forced reading; the words “which pool,” &e., are dependent on an if to be supplied, and should be understood precisely as if the words “and if that” or others synonomous, were written instead of “which.” That is the obvious meaning of the court; but if not, the fact was not one in controversy, being testified to by both sides, and might as well have been stated to the jury as if admitted by the pleadings. It is claimed that the jury was allowed to separate without consent of the parties to the action. The order of the court giving this permission was made in presence of the attorneys for either side, without objection. In so doing the court followed a custom so well recognized that the consent of the parties must be implied, in absence of any objection. It is [161] not pretended that any harm came to appellant by reason of this irregularity, if under the circumstances it can be so considered; and it would be unusual practice to reverse a case upon the mere fact of separation under permission from the court. In the case of Nicolls v. Whiting, quoted as authority for the direction given the jury in Lester v. Stanly, cited by appellant (3 Day, 287), the separation was violent and against the express direction of the court. This case is not treated as authority-by the supreme court of errors of the state where rendered; or else is not held to be in point on the present proposition. State v. Babcock, 1 Conn. 401. The order and judgment of the district court are without error and are hereby affirmed.