Felsenthal v. Block

Bailey, J. The instruction given by the court to the jury at the instance of the appellees, though somewhat adroitly worded, was, in our opinion, calculated to mislead the jury. |The question of the assessment of damages was one .which 'the jury had no right to consider until they had previously passed upon the issues in the case, and decided them in favor of the appellees. The instruction, however, directs their attention in the first instance to the assessment of damages, and without presupposing any determination of the issues, lays down the rule by which the appellee’s damages are to be measured and ascertained. It was substantially tantamount to a direction to the jury to proceed at once to the assessment of damages, thus practically withdrawing from their attention all consideration of the issues in the case. • Until the issues were determined, no damages were recoverable, and, until then, there could be no measure of damages, and such measure should have been laid down in an instruction only "upon the hypothesis of the issues being found for the appellees. It is true, the instruction near its close contains a qualification which requires the jury before assessing damages, to find from the evidence that no iron was delivered prior to the first day of March. This was far from being tantamount to a requirement to find the issues for the appellees. The fact thus singled out was only one of several which it was incumbent upon the appellees to establish to entitle themselves to a verdict. The burden was upon them to prove the contract and its terms, and also to show that they themselves were ready and willing to receive the iron, and to pay for it according to the terms of the contract. For the error in giving the foregoing instruction, the judgment must be reversed and the cause remanded. Judgment reversed.