Hamilton v. Elkins

Downey, J. This was an action by the appellee against the appellant for the recovery of the price and value of certain goods, wares, and merchandise sold and delivered, a bill of particulars of which was filed with the complaint. The defendant answered: ist. A general denial. 2d.. Payment. 3d. Payment of a part of the amount in different sums and at different times, and the execution of a note-for the residue, which, it is alleged, the plaintiff accepted in-full discharge of the same; that he afterward paid off said, note, except as to one hundred and twenty-three dollars, for which he gave the plaintiff his note, on which, the plaintiff obtained judgment, which he now holds; wherefore, etc. Reply in denial of the second and third paragraphs of the answer. The cause was tried by a jury, and there was a-verdict for the plaintiff A motion by the defendant for a new trial was overruled, and final judgment was rendered on the verdict. The overruling of the motion for a new trial is the only error properly assigned. The first reason for a new trial was, that the verdict was. contrary to law, and the second was, that it was contrary to the evidence. These reasons for a new trial are not seriously urged here. The third reason was the refusal of the court to strike out the third paragraph of the reply, and the fourth was overruling the defendant’s demurrer to the third paragraph of the reply. These are not reasons for a new trial, and the record fails to show any such action of the court. The fifth reason is the refusal of the court to instruct the jury, as shown by bill of exceptions. There is no-ground for this objection in the record. No bill of exceptions shows any refusal of the court to give any instructions. The sixth reason is, that the court erred in failing to instruct the jury as to the whole law of the case; and the seventh is, that the court, in instructing the jury, omitted and failed to» instruct them as to the legal effect of the notes given in evi [215] dence. There is an instruction in the record, but not in any bill of exceptions, and it does not appear whether it was the only instruction given or not. If, in any case, it would be an available error that the court did not fully instruct the jury, when not requested to do so, that point does not arise upon this record, because it does not appear that the court ,did not fully instruct them. There is really no question which we can decide. The judgment is affirmed, with costs and five per cent, damages; '