Mead v. Hogue

Day, J. I. The giving of the second instruction is assigned as error. No exception was taken to the instruction when it was given, nor was any objection made to it in the motion for new trial. Wo cannot, therefore, consider this assignment. II. Thomas S. Brooke, who was present when the exchange between plaintiff and defendant was made, among other things testified as follows : “I understood it as an exchange of notes; that he took the Perry note in exchange for my note. I understood he took the Perry note on his own responsibility.” Plaintiff objected to this testimony as incompetent, and the court excluded it. This action of the court is assigned as error. The action was correct. The witness should have testified to facts, and alio we 1 the inferences to be drawn by the jury. HI. ■ It is claimed that the court erred in submitting the question of the agreement between plaintiff and defendant to the jury, because the same was not put in issue by a reply. No exception was taken to this action of the court. Besides, no reply was necessary to this answer. Code, } 2663. IV. The only remaining error assigned is that the court erred in overruling the motion for a new trial. The only point in that not already [704] considered is that the verdict is contrary to the evidence. The evidence is conflicting and pretty evenly balanced. "Were it much less so we could not disturb the verdict. Affirmed.