122 A. 796 | N.H. | 1923
Upon the facts determined at the trial the defendant is as matter of law entitled to judgment, as claimed in the brief statement, for the excess of the amount found as damages for breach of warranty over the amount due on the notes. Johnson v. Association,
The exception was seasonably taken. A party is not called on to object or except until he is "aggrieved by the ruling, direction, or judgment of the superior court." Laws 1901, c. 78, s. 5. If at the conference the court had informed counsel he proposed to instruct the jury to limit their verdict to the amount due on the notes, the defendant's rights would have been protected by exception taken when the instruction was given. As the instruction was not given, there was no occasion for the defendant to object or except. He certainly was not "aggrieved" by the procedure adopted. The so-called ruling was merely an expression of opinion as to future procedure if a particular situation, which might never be presented, should thereafter arise in the case.
The conclusion not to instruct the jury to limit their verdict necessarily left the question of law open until it should arise, if it ever did. Rule 52,
The defendant has no occasion for a new trial of the issue submitted to the jury. The result of the one that has been had appears entirely satisfactory to him. Whether the plaintiffs can sustain an application for a new trial is not profitably considered until such an application is made and the facts found. If, as suggested in the plaintiffs' brief, counsel at the time thought the court in error, the ground upon which such application could be sustained is not now apparent. Upon this question no opinion is expressed or formed.
Defendant's exception sustained.
All concurred.