Livermore v. Stine

Objection to Amount oe Verdict Must be Particularly Specified.—On appeal from an order denying a new trial, a point that the verdict is for too small a sum cannot be considered in the Supreme Court, if it be not particularly specified as a ground of objection in the statement. > Conflict of Evidence.—A verdict will not he disturbed as against evidence where there is a substantial conflict of evidence. Objection to Evidence of Contract as Incompetent should be Made when Testimony Offered.—If a party claiming under a contract, required by the Statute of Frauds to he in writing, he permitted without objection to prove a contract by parol, and a motion he afterwards made to strike out the testimony on the ground that the contract was not in writing, the fact that the evidence is already before the jury, without objection, is a sufficient answer to such motion. Defective Instruction Helped out by Another Instruction.— "Where an instruction given at the request of one party was open to criticism as omitting an important element, hut the point in which it was deficient was distinctly enunciated in an instruction given at the request of the other party: Held, that the jury had not been misled.

Appeal from the District Court of the Sixtéenth Judicial District, Kern County. This was an action for five hundred and sixty-nine dollars and sixty-eight cents on promissory notes and hook account. The defendant answered, denying any greater indebtedness than sixty-nine dollars and sixty-eight cents in the first count, and in the second setting up a counterclaim for five hundred dollars, for bricks made for plaintiffs, and praying that such amount might be allowed as an offset to plaintiffs’ demand. There was testimony tending to show that the plaintiffs, by their agent, George B. Chester, made a contract with defendant to make fifty thousand bricks for them, and that he made them. After considerable testimony had been heard on the subject of the contract, the defendant, being recalled, testified that the contract was not in writing. Plaintiffs then moved to strike out all the testimony in relation to the contract, on the ground that such contract was invalid, under section thirteen of the Statute of Frauds, because it was not in writing. The motion was denied, and plaintiffs excepted. The second instruction, asked by the defendant and given by the Court to the jury, was as follows : “If the jury believe from the evidence that defendant agreed with George B. Chester to make fifty thousand bricks for the sum of five hijpdred dollars, and that George B. Chester was agent of plaintiffs, they will allow the defendant an offset of five hundred dollars.” The Court also gave the following instruction asked by the plaintiffs: “If the jury believe from the evidence that the defendant and George Chester entered into a contract by which the defendant was to make fifty thousand bricks and the plaintiffs were to pay him five hundred dollars therefor, that in order to bind the plaintiffs by such contract then it must be shown that the plaintiffs assented thereto or authorized George Chester to make such a contract in order to bind the plaintiffs thereby.” The trial, being before a jury, resulted in a verdict and judgment in favor of plaintiffs for sixty-nine dollars and sixty-eight cents. Plaintiffs moved for a new trial, assigning as error, among other things, that the evidence was insufficient to justify the verdict, and that the same was against law, but not particularly specifyiñg that the amount of their recovery was too small. The motion having been overruled, plaintiffs appealed from the order.