Buessemeyer v. Stuckenberg

Dryden, Judge, delivered the opinion of the court. This was an action to recover an unpaid balance of the price of a lot of cord-wood alleged to have been sold to the defendant by a factor of the plaintiff. The case was tried by a jury, and the verdict and judgment were for the plaintiff, and the defendant appealed. In the condition in which we find the record it is impossible to say whether error was committed by the lower court or not. The first error complained of consists in the permission given the plaintiff to read the deposition of the witness Berg. The defendant’s objections to the deposition is unaccompanied by the statement of any reason on which it is based, and for this cause alone the objection ought to have been disregarded. But, aside from this, if it was proper now to examine the deposition to see whether for any cause it was objectionable, we could not do so because the deposition is not put into the record, and we are therefore left in the . dark as to its character and contents. It is also complained that the court misdirected the jury at the instance of the plaintiff, and refused instructions which ought to have been given for the defendant. The court below ought to have instructed with reference to the evidence before it, and as the record fails to show us what that evidence was, it is our duty to suppose it was such as would sustain the action of the court. Let the judgment be affirmed. The other judges concur.