183 F. 93 | 2d Cir. | 1910
There are no disputed facts. At the close of the testimony the court directed a verdict in favor of the plaintiff. The defendant did not move for a direction in its favor. The motion for a new trial presents no question reviewable in this court. Reader v. Haggin, 160 Fed. 909, 88 C. C. A. 91: Denison v. Shawmut Mining Co., 159 Fed. 103, 86 C. C. A. 292,
The only question, therefore, is whether the defendant’s exception to the direction of a verdict for the plaintiff, taken after the verdict was rendered, was well taken. The record presents the somewhat anomalous situation of the defendant insisting that a verdict should have been directed in his favor when he did not ask that this be done. ] f he had made such a motion it might have been granted. Instead of doing so, lie waited until the verdict had actually been rendered and then coupled a motion to set it aside with an exception to the action of the court in directing it. So far as appears from the record, the defendant’s counsel took no part in the trial from beginning to end. His first appearance, as stated above, was to take an exception to the rendition of the verdict after it had been rendered. This court, following the decisions of the Supreme Court, has frequently held that an exception taken after the jury has retired is valueless. Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58 ; Park Bros. & Co. v. Bushnell, 60 Fed. 583, 9 C. C. A. 138; Mann v. Dempster, 179 Fed. 837. It also seems to be well settled that a party who has not asked the court to direct a verdict in his favor cannot successfully urge as a ground for reversal that such a direction was not made. Insurance Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 196; Oswego Township v. Travelers’ Ins. Co. 70 Fed. 225, 17 C. C. A. 77.
However, we will consider the case upon the theory that the exception taken sufficiently presents the questions debated. The contention of the plaintiff is that the action is brought to recover the balance due on a debt of Si,394.22, which remained after a payment of $1,260.36, arid that this amount was first applied to the payment of accrued interest and then to the reduction of the principal. There is nothing in the proof to show that this was not done. Indeed, in the absence of proof to the contrary, the presumption is that this was the disposition made of the payment. It was the natural thing to do. Story v. Livingston, 13 Pet. 370, 10 L. Ed. 200. In Bidwell v. Preston, 160 Fed. 653, 88 C. C. A. 19, the plaintiff at the time of payment delivered to the defendant a letter in which he says:
“In addition to the amount set forth in my claim for duties erroneously exacted on my importation of sugar liy the Julia Frances from Porto Rico, amounting to .$4,843.32, I claim the interest due on the amount set forth in my claim at the same rate per annum which I reserve and do not abandon.”
This shows clearly that the plaintiff in the Bidwell Case endeavored after receiving the amount due him as principal to reserve his claim for interest.
The judgment is affirmed with costs.