McPherson v. Nelson

Mr. Chief Justice Walker delivered the opinion of the Court: It appears from the record in this case that there were not any exceptions taken to the refusal of the court below to give appellants’ instructions. Again, the bill of exceptions does not show that it contains all of the evidence. The court will not, therefore, examine the instructions to ascertain whether or not they were improper. Appellants, failing to except, waived all objection to them, and come too late, in this court, to urge any objections for the first time. When the bill of exceptions fails to show that it contains all of the evidence, as we have uniformly held, we will not examine the evidence on a motion for a new trial, which it is presumed sustains the verdict. The presumption is, until the contrary is shown, that the finding is correct, and that there was evidence which may not be in the record that warranted the finding. The question then arises, whether the judgment should be reversed, upon the instruction given for the appellees, in view of the evidence which the record contains, and such as this court must infer was given on the trial below. In the second count of the declaration there is an averment that appellees were at all times, after making the agreement, ready and willing to deliver the oats at the contract price. This count contains no averment of a tender. Appellees under the other counts attempted to prove a tender, but so far as the evidence, is disclosed in the record, they seem to have failed. They, however, seem to have held warehouse receipts, for perhaps the amount of oats embraced in the contract, and a tender need not have been proved. It also appears from the evidence that appellants had not furnished their agent, who made the purchase, with means to pay for the oats, if they had been offered on the last day of the contract, and he expressly states, that had they been tendered, he would not have received them. And the fact that oats had declined fully one-third in price, between the time of purchase and the last day of March, would indicate that they were not so ready to receive them, as if they had risen to the same extent. If appellees had proved that they had the oats, of the quality specified, on the 31st day of March, and- that they saw appellants and offered to deliver, and they refused to receive them, there would be no question of the right to recover. And as the bill of exeptions fails to state that there was no other evidence than that embodied therein, we will presume that this or other evidence pertinent and sufficient to sustain the verdict was given. With such evidence before the jury, whether the instruction given for appellees was correct or not, it would not be ground of reversal, unless it would necessarily mislead the jury. We do not think this instruction was of that character, and is sustained by Lassen v. Mitchell, 41 Ill. 101. For these reasons the judgment of the court below is affirmed. Judgment affirmed. At the September Term, 1867, the appellant presented his petition for a rehearing of this cause, which was refused, for reasons given in the following opinion: