Johnston v. Hirschberg

Mr. Justice Wilkin delivered the opinion of the court: The questions of fact involved in this controversy have been found adversely to appellant by the judgment of the Appellate Court, which finding is conclusive here. The brief of appellant does not comply with the rule of this court, in that it consists of several briefs used in the Appellate Court, re-filed here. However, we have examined the cause upon its merits, and fail to find in the recoged any reversible error. The only contention urged by appellant is, that the third instruction given for appellee was erroneous. That instruction was as follows: “The court instructs the jury that if they believe, from the evidence, that the plaintiff was the owner of the tobacco in question, and that he had possession of the same, and the defendant, by his deputy, took and carried away the tobacco on a writ of attachment against one Isaac D. Hurwitz, the jury should find the issues for the plaintiff.” It is insisted it is defective in that it does not contain the element of purchase and possession in good faith. As said by the Appellate Court, it is subject to the criticism. The elements of fraudulent intent and want of good faith in the alleged sale and purchase were clearly stated in several instructions given at the instance of the plaintiff and at least one given on behalf of the defendant, and we concur in the view of the Appellate Court that the jury could not have been misled by the omission in the third. As a whole the instructions fairly presented the law of the case. The judgment of the Appellate Court is right, and will be affirmed. Judgment affirmed.