Keyes & Marshall Bros. Livery Co. v. Hardy

CAULFIELD, J.

Action for breach of contract. There was verdict and judgment for defendant, and plaintiff has appealed. The only point urged upon this appeal is, that “the fourth instruction given by the court at the instance of the defendant is erroneous.” The abstract of plaintiff (appellant) sets forth four instructions alleged to have been given at the instance of the defendant, being instructions 2, 3, 4 and 5, and states that to the giving of each of them the plaintiff excepted. But defendant (respondent), prepared and has duly served upon the appellant and filed, an additional abstract, from which it appears that the bill of exceptions does not show the giving of the alleged instruction marked number 4, but shows that only instructions 2, 3 and 5 were given, as follows:

“At the request of the defendant, the court gave the following instructions, to-wit (clerk will here insert instructions 2, 3, and 5), to the giving of each and all of said instructions the plaintiff then and there duly excepted at the time.”

No objections to this additional abstract, served and filed by respondent, have been filed in this court, as required by our Bule 12, and hence we take it that none can be made thereto, and proceed upon that theory. So that as the record appears, from the bill of exceptions, instruction No. 4, to the alleged giving of which plaintiff (appellant) makes its only point for reversal, was in fact not given. That matter is, therefore, not before us for review, and there being no error apparent on the fact of the record, the judgment must be affirmed. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.