Winn v. Sanborn

Corson, P. J.

This was an action on contract. Verdict and judgment for plaintiff, and defendant appealed from the judgment and the order denying a new trial.

On the trial an objection to a certain question propounded to defendant Sanborn, when- on the stand as a witness, was sustained. Appellant contends this w»s error. As substantially the same question was permitted to be answered without objection, the error, if any, was cured. State v. Smith, 8 S. D. 547, 67 N. W. 619 .

The next error assigned is that the court erred in not instructing-the jury in reference to the provisions of Sec. 3564, Comp. Laws. This section has no application to the facts in this case. There was no ambiguity or uncertainty in the contract, in the sense those words are used in that section. Plaintiff testified that the agreement was that he was to be paid $1.25 per ton for hay stacked in the field, and $1.50 for hay stacked at the house. The defendant testified that $1 and $1.25, respectively, was to be paid. It was for the jury, therefore, to determine which statement they would believe. But, if the section was applicable, it was the duty of defendant’s counsel, if he desiredN an instruction upon that question, to have called the court’s attention to the statute, and requested an instruction. Failing to do this, the appellant has no ground of complaint in this court. The rule applicable to such cases is thus stated in 11 Am. &Eng. Ene. Law, p. 258: “It is noterror for the judge to omit to charge the jury on a particular point, unless asked to do so at the trial. A party cannot, in a court of error, avail himself of an omission which he made no effort to have supplied qt the time, The rule is that, for misdirection, judg *644 ment will be reversed, though no instruction be asked; but not for the omission to instruct on a particular point, where the judge was not requested to do so.” Frye v. Ferguson, 6 S. D. 392, 61 N. W. 161 . The same rule applies to the failure of the court to instruct the jury as to what is necessary to constitute a contract. Defendant’s counsel requested no instruction upon the subject, and hence the failure of the court to instruct upon the subject is not error.

It is' further contended by appellant that the court erred in instructing the jury that, if they found for plaintiff, they should find interest from November 1, 1896. No exceptions appear to have been taken to the instructions of the court prior to judgment. Uhe v. Railway Co., 4 S. D. 505, 57 N. W. 484 . Hence the instructions cannot be reviewed on this appeal. State v. Smith, supra.

There was no error in imposing terms on denying motion for a new trial. Laws 1893, Chap. 70. Finding no error in the record, the judgment and the order denying a new trial are affirmed.