18 Iowa 420 | Iowa | 1865
It is not stated in the margin or elsewhere whether they were “given” or “refused.” The only entry on the margin is as follows: “Excepted to by the defendant,”
Under section 3054 the judge should state whether the instructions are “given” or “refused:” this need not necessarily be stated in a bill of exceptions.
The statement of the clerk that they were given is not sufficient.
It would be a loose and dangerous practice to take the bare statement of the clerk that such instructions were given or such refused.
While under the Revision it is possible to bring up instructions without a formal bill of exceptions, yet to prevent mistakes we much prefer that the instructions “ given” or “ refused ” should be embodied in or identified by a bill of exceptions.
The “charge" of the court, although not embodied in a bill of exceptions, being properly entitled, addressed to the jury and signed by the judge, is a part of the record. (See sections of Revision above cited.) And it is stated on the margin of the several paragraphs or divisions constituting the charge, that they were “.excepted to by the defendant.” This is sufficient, and we briefly notice the errors assigned upon it.
The petition alleged a demand of the wheat, an offer to surrender the receipt and to pay the storage thereon (not
The court charged the jury (the defendant excepting), that if they found for the plaintiffs, “then damages would be the value of the wheat at the date of the demand.” The defendant claims that the court should have added, “less the storage thereon,” as a warehouseman has a lien for his charges. (1 Pars. Contr., 622; Sedgw. on Damages, 482, 486, 487; 13 Metc., 267.)
Under a proper issue and testimony'under it, this might have been a very proper qualification to the charge; but it is obvious, under the state of the case as above explained, the failure of the court to add this qualification is not an error for which the judgment should be reversed, the more especially as the defendant did not ask any such modification.
This subject was considered by this court in Sternberg v. Callanan & Ingham, 14 Iowa, 251, and the law quite fully and correctly laid down in the opinion of Mr. Chief Justice Baldwin.
There are two answers to the defendant’s objections: 1st. The court below, as we find upon examination, laid down no principles of law not fully warranted by the case of Sternberg v. Callanan, above cited. 2d. The action was brought against the defendant upon his own promise and contract, and not for the debts of a prior firm. We say upon his own contract; for under the issues and the
Affirmed.