Swain v. Cawood

Smith, Justice, delivered the opinion of the Court: The whole evidence given in the cause on the trial, does not appear in the record, even admitting that the deposition of one of the defendants in the action in the Court below, should be considered a part of the bill of exceptions, but which the circuit judge, in signing the exceptions, declares is not. Upon the ground, then, that all the evidence does not appear, and that such as does, is not regularly before us, we cannot undertake to judge whether the Circuit Court ought to have granted a new trial. Until the refusal of the Circuit Court to grant the motion, shall appear to have been an exercise of its discretion, not warranted by the facts appearing on the trial, we cannot grant the order asked. We see no error in the instructions of the judge to the jury. The notice of the set off of the damages, is predicated on an express failure of the whole consideration of the note; and the principle of allowing a part failure to be given in evidence, could not have been adopted without violating the rules of evidence. If the defendants had intended to have relied on a part failure, they should have so framed their plea or notice. The note appears to have been given after a completion and acceptance of the work, and is prima facie evidence that it was well done, and in conformity to the agreement of the parties. The pleadings, however, would not let in the defence or instructions asked; and we see no cause for disturbing the judgment. For ought that appears, the judgment has been regularly obtained. The judgment is affirmed. Judgment affirmed. Note. See 4 Blackf. 556, and authorities there cited, where it is held that the defendant may, under the general issue, reduce the damages by showing a part failure of consideration.