Parry v. Arnold

Gary, P. J. Where the abstract prepared by the appellant does not show an exception, the court will not look into the record to see if one was taken, and where the abstract does not contain the instructions the record will not be referred to to supply the omission. Rule 21 is, in fact as well as form, a rule. This is an action for storage on a machine left by the appellee with the appellant, on which the appellant advanced to the aj>pellee $25, and the question before the jury was whether that money was a loan to be repaid by the appellee, together with storage charges, or whether the appellant took the machine to do what he pleased with it, so far as the appellee was concerned, and with no recourse upon the appellee for money advanced or storage charges. The appellant produced an application from the appellee to the appellant, upon a printed blank, beginning, “ store for me in your warehouse,” some portion of the printed part of which was erased, but which contained no promise in express words to pay anything. The appellee testified that the rate of storage was inserted after he signed it, as the result of a conversation, that as he was to pay no storage, it made no difference what rate was inserted. The transaction was in April, 1885. About the end of January, 1887, the appellant sent to the appellee a bill, which the appellee returned in a letter. That bill and the letter were put in evidence by the appellee. To the foregoing evidence of appellee the appellant presented exceptions. It was all admissible. It was for the jury to say whether the rate of storage was inserted after signature, and if so, whether as a part of a contract between the parties or for some other purpose ; and it being disputed that the rate was inserted after signature, the long delay of the appellant in making any claim was a circumstance which the appellee had the right to present for the consideration of the jury in corroboration of his testimony; and then it followed that he had the right to show that when a claim was made he did not acquiesce, and thereby impliedly admit the justness of the claim. There is no error of law, and the verdict of the jury settles the facts. Judgment affirmed. Affirmed.