Fine v. Rogers

Gamble, J., delivered the opinion of the court. Before proceeding to examine the instructions in this cas;e, it is necessary to dispose of a preliminary question. The point is made that because the giving and refusing instructions was not made a ground for the motion for a new trial, this court, in accordance with,former decisions, will not examine into the correctness of the action of the court below, either in giving the instructions asked by the plaintiff or in refusing that asked by the defendant. It has been the practice of this court, to regard errors of the circuit courts in the decisions made during the progress of a trial, as waived by the party against whom the error was committed, unless there was a motion for a new trial made, and the error of the court upon the specific point assigned as a reason for the motion. But the law has been thrown into some confusion by the statute to reform pleadings and practice in courts of justice. In the last clause of the 3rd section of the 11th article of that act, there is an enumeration of cases in which the courts of original jurisdiction are required to grant new trials. The oases are surprise, misdirection by the court, mistake by the jury, the verdict being contrary to instructions, fraud or deceit practiced upon either party, or mistake or perjury of a witness. It is commanded, that if the court shall be satisfied that an improper verdict has been occasioned by either of these causes, and that the party has a just cause of action, or defence, a new trial shall be granted, and if necessaryffhe pleadings shall be amended. It oannot have been the intention of the legislature by this enumeration of causes for which a new trial may be granted, to exclude other causes as the ground for the exercise of this power. It cannot have been intended that the circuit courts should no lbnger have power to gf'ant new trials on account of the improper admission or rejection of evidence, or when the Verdict found under the influence of passion or prejudice is contrary to evidence, or when fhé dainages are excessive, or when the jury have been guilty of misbehaviói?, or when there is newly discovered evidence, that would have materially affected the verdict. It is not to be believed that there was any design to limit the necessary control of courts over the verdicts of juries, nor is there any necessity [320] for so constructing this part of the statute as to produce that effect. To give it any force, however, it must be taken to have given additional emphasis to the obligation of the courts, to grant new trials in the enumerated cases. There is no direction as to the mode in which an application for the new trial is to be made, and if this is to be in accordance with, the former statute, still the rules that would formerly have governed the court are not the same that are to be applied under this act, for new trials are to be granted under its direction even where the case made in the pleadings is not sustained by evidence, and where it will be necessary to amend the pleadings after the new trial is granted, in order to sustain the action or defence. It is to be observed, that many of the grounds specified in this clause of the act are common, familiar reasons for new trials, and others, if not entirely new, are of exceedingly rare occurrence. An application for a new trial on the ground that a particular witness had committed perjury at the trial, would present a question of great delicacy to the court before which the trial took place, when not only the-evidence contradicting the witness, but his manner and all circumstances calculated to discredit it or to sustain his testimony were known to the court. If such questions were brought before this court, where nothing' can appear but the inconsistencies in the testimony given by the witness and the contradiction of his testimony by other evidence, as the whole matter would be spread on a bill of exceptions drawn by the counsel of one of the parties, there would be the greatest danger of doing injustice to the parties and to the character of the witness implicated. It may be assumed to be the pervading spirit of the code to decide cases upon all questions of law and fact, without any adherence to forms. The 6th section of the 19th article, allows bills of exception to be taken to all opinions of the circuit courts in the progress of trials as heretofore. The exceptions thus taken are intended to bring these opinions and decisions before the court for revision, and we think it is most consistent with. the design of the legislature to give the parties the benefit of such review without requiring any motion for a new trial to be made. The propriety of this change of practice is the stronger, from the fact, that the court impressed with a sense of the danger of the rights of parties in the exercise of such jurisdiction, has declined considering motions for new trials when they rest upon the question of the verdict’s being against evidence, or the weight of evidence. Proceeding then to the consideration of the instructions in this case, it is the opinion of the court that the third instruction taken by itself was,calculated to mislead the jury. [321] That a parol contract may be rescinded by the parties while executory, without a formal release, is a familiar principle of law, and that such recision may he inferred from the acts of the parties, is equally clear, very slight circumstances will be sufficient to show the assent of a party when it is obviously for his interest that the contract should be terminated; as in the present ease, when the steamboat on which the plaintiff was engaged, was withdrawn from business and laid up, the crew paid off and discharged, and the contract with the plaintiff entitled him to the same compensation, whether the boat was running or not. In such case an offer, on his part, to rescind, and his subsequent acts, only justifiable on the ground that a recision had taken place, would well authorize a jury to find such recision. By the third instruction the attention of the jury would naturally be directed to the conversation between Fine and the witness Maline, and when they- were told, that in order to make a relinguishment of the contract valid, it must be proved by the defendant that it was made to a person competent- to assent to it, and that such person did assent to it and accept it, or that the plaintiff refused to act under the contract, they would infer that if Maline had no power to make the agreement to rescind, then there was no rescisión. This instruction thus understood, would have led the minds of the jury away from all consideration of the acts of the plaintiff in going on board the Monroe and acting as her pilot, from which, connected with his declarations, the jury might have well believed that the contract - was rescinded. Because the instruction might have made such impression on the mind of the jury, it has endangered the'judgment in the case, but on a close examination of the fifth instruction, we think the error of the third is cured as it states the facts that would prevent a recovery by the plaintiff. The fifth instruction informs the jury, that if the plaintiff agreed to rescind and acted on that agreement with the assent and acquiescence of the defendant, there can be no recovery for services subsequently offered to be rendered. This instruction gives proper force to the acts of the plaintiff, and being understood by the jury would present the question of fact to be tried by them fairly for their consideration. It is undoubtedly true that the rescisión of a contract may be prop-1 erly found, although no distinct proposition to rescind, be made by i either party, can be shown. Their acts and declarations may establish | the fact as satisfactorily as the most distinct evidence. jj The refusal of the defendants instruction did not prejudice him. A1 though it applied the principles of law, expressed in the fifth instruction [322] given for the plaintiff, to the facts in evidence, and was therefore preferable in form, yet it did not differ in the principles of law it contained from the fifth instruction. The judgment will be affirmed, the other judges concurring.