McIntyre v. Kline

HaNDT, J., delivered the opinion of the court. This was an action in the Circuit Court of Lowndes county, for the recovery of the price of four carts made by the plaintiff for the defendants. The complaint being drawn under the statute of 1850, abolishing the forms of pleadings, is very uncertain, and difficult to be tested by legal rules which are well underst ood. It purports to be for the recovery of the balance due by the defendants to the plaintiff, on an account which is exhibited with the complaint, and in which the defendants are charged with the balance of the sum of money demanded. The defendants answered, first, denying generally the allegations of the complaint, and second, pleading payment. And the case'appears to have been treated by both parties as an action to recover the price of the carts made by the plaintiff, at the instance and request of the defendants. No question was raised upon the sufficiency of the complaint, or upon the sufficiency of the evidence to support the action under the peculiar allegations of the complaint. The case is brought up upon a bill of exceptions taken to the rulings of the court during the trial, there being no motion made [367] for a new trial. And these rulings present the only questions properly before us for consideration. The first exception was taken to the following instruction, granted at the instance of the plaintiff. “ If the jury believe from the evidence, that the work was to be done by a certain specified time, and that the work was done at the time specified, and ready for delivery, and the defendant had notice that the work was ready for delivery, then it was not necessary for the plaintiff to offer to deliver the work to defendants, before his right of action accrued.” The evidence upon this point was in substance, that some time in the fall of 1853, the defendant, Riley, ordered the carts to be made at the plaintiff’s shop, of a particular description, and that they were to be made by the plaintiff by a specified time; that they were made according to the agreement, with the exception of one particular, which was waived by the agreement, and by the time specified, but were never called for or taken away by the defendants. When they were finished, they were put away under a shelter, about plaintiff’s shop, and were burnedjby a late fire in the town, since the suit was brought. In order to entitle plaintiff to recover,. it was necessary, either* that the work should be finished and delivered according to the' contract, or that it should have been ready “for delivery, and set apart for the purchaser, conformably to the specifications and terms of the contract, and accepted by him. This acceptance! may be implied from the fact of notice of the completion of the work agreeably to the contract, being given to him, and his making no objection to the work. This rule is substantially declared in the instructions above stated, and we do not think it would have been error to grant it," if the evidence had warranted it. If an objection had been made upon a motion for a new trial, that the evidence was not sufficient to justify the verdict, because it did not sufficiently show that tie plaintiff gave notice to the defendant that the work was finished and ready to be delivered, we should have been disposed to sustain the objection. Rut exception was taken solely to the correctness of the instruction as a [368] rule of law, and the question is, whether it was properly granted with reference to the evidence in the case ? Though an instruction be correct as a general principle of law, yet if there be no evidence tending to show that the facts hypothetically stated in it, exist, it should not be given as a rule of law applicable to the case. For if the verdict could not be supported without proof of those facts — and there was no evidence tending to prove them — it would be the duty of the court on motion to set aside the verdict, and award a new trial. It is, therefore, undoubtedly a sound rule, that wherever, under such circumstances, the court should grant a new trial, it would be erroneous to grant the instruction on the trial — the reason for both steps being the same, to wit, that there was no evidence to maintain the action. We therefore think that the instruction, though correct as a general rule of law, should not have been given under the evidence. The other point raised by the bill of exceptions is, that the court refused to instruct the jury, that if they believed from the evidence that the defendants tendered to the plaintiff the amount justly due him before the commencement of the suit, they should find for the defendants. It is conceded, th&t by the rules of pleading at common law, a tender could not have been shown without a plea of tender. But it is said that this rule was dispensed with by virtue of the act in relation to pleadings above mentioned. We do not think that that act has such an effect. It was intended to abolish or change the forms of pleadings, but not to affect the substantial rights of parties to suits, and it certainly was not intended to allow the defendant to rely upon a ground of defence, inconsistent with the ground of defence set up in his answers, without amendment. The general denial of an answer is tantamount to a plea of the general i- issue at common law, and under it the defendant would no more be permitted to set up a defence inconsistent with it, than he would at common law under the general issue. A tender could not be proved under the general issue at common law, because it was incompatible with the plea, the one denying the liability to pay, and the other admitting, by offering to pay the sum tendered; [369] and for the same reason, the two pleas could not be pleaded together. 1 Chitt. PL 593, (6 Am. ed.) The instruction upon this point was, therefore, properly refused. But upon the first ground above mentioned, the judgment is reversed, and the case remanded.