Sullivan v. Dollins

Trumbull, J. It is manifest, from the whole record in this case, that the consideration of the note sued on was a stallion of the Leviathan stock, together with certificates of respectable men in Tennessee proving the pedigree of the horse, which were to be furnished before the then next season. The evidence is somewhat loose as to the blood of the horse, and the failure to furnish the certificates; but the jury were clearly warranted to infer from it, that the certificates were never furnished, and that the horse was not of the blood represented. They might, without a manifest disregard of the evidence, have found either way, and in such a case, a verdict will not be set aside for the reason simply, that the evidence might incline the mind of the court to a different result. The pleas under which the evidence was admitted were loosely drawn, and might have been obnoxious to a demurrer, but they fully apprised the plaintiff of the defence relied upon, and after verdict must be deemed sufficient. The rule is, that “where there is any defect, imperfection, or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed, that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict.” 1 Chitty’s Pl. 673; Hendricks v. Seeley, 6 Conn. 176. Here the whole evidence is before the court; and if it were admitted that the pleas did not allege with sufficient certainty, that the note was given in consideration of a horse of a particular stock, with certificates of his pedigree to be afterwards furnished, which was the consideration attempted to be set forth, still the court can see, from the evidence, without indulging in presumptions, that upon the trial, such was clearly shown to have been the consideration of the note; and the pleas after issue joined upon them were sufficiently specific to justify the introduction of the evidence. The correctness of the instructions is not before us, as no exception was taken to them at the time they were given, and it has repeatedly been held, that to avail himself of an objection to an instruction, the party must except to it when given, and that he cannot do so afterwards in this court, on an exception to a decision of the court below in refusing a motion for a new trial. Leigh v. Hodges, 3 Scam. 15; Hill v. Ward, 2 Gilm. 293. The judge presiding at the trial would undoubtedly sustain a motion to set aside a verdict, which he was satisfied might have been obtained through a misdirection of his, although- not excepted to ; but in this court, a party, to avail himself of an objection to an erroneous instruction to the jury, must have excepted to it at the time it was given. The statute debarring the makers of a note from setting up a want or failure of consideration as a defence to a note assigned before due, applies only to cases, where the legal title to the note has been transferred by assignment to a bond fide assignee, and has no application to a case like this, where the payee of the note, who has the legal title, institutes a suit in his own name for the use of another. The judgment of the Circuit Court is affirmed at the cost of the plaintiff in error. Judgment affirmed.