Ashbaugh v. Murphy

Mr. Justice Scott delivered the opinion of the Court: No variance is perceived between the proof as to the description of the land and the description given in the declaration. Plaintiff seems to have been a rather dull witness, but the jury and court appear to have understood him to describe the land- substantially as it is described in the declaration, and that is sufficient. Objection is taken to a remark made by the court in relation to the identity of the description of the land; but in view of the fact the court had been repeatedly urged to exclude all evidence on that branch of the case offered by plaintiff, it is not perceived how the court could have said any less than it did in deciding the questions so persistently urged before it. The evidence offered sufficiently sustains the finding of the jury. Whether defendant signed the contract for the sale of the premises, and was, therefore, bound by its terms, was a question of fact, and as there is testimony that justifies the finding for plaintiff on that question, we do not see how the verdict can be disturbed. The contract, that afforded the only conclusive evidence on this point, was destroyed by defendant, and on the secondary evidence as to that fact in the case, the finding of the jury is against him, and we can not say it is not sustained. According to plaintiff's version of the testimony (and the jury seem to have adopted that view), when plaintiff tendered a warranty deed to defendant the latter made no objection to it, but placed his refusal to accept the deed and pay for the land on the sole ground he did not have the money. Had he himself been ready to perform the contract, and objected to the deed because the property was incumbered, plaintiff might have been able to show the property was free from all incumbrance and the title perfect. But defendant makes no pretense that he was ready, and able and willing to perform the contract, nor that he made any specific objection to the deed tendered. Substantial justice has been done, and the judgment must be affirmed. Judgment affirmed.