1 Indian Terr. 578 | Ct. App. Ind. Terr. | 1898
(after stating the facts.) Counse for appellant, in his brief, states that his first contention if
The first assignment of error in the record is to the effect that the court erred in its instructions to the jury, and in refusing the instructions requested by the defendant. This assignment was made after the motion for a new trial had been overruled. The record fails to disclose that any exception was taken to the court’s instructions at the time they were given, and it is now too late to assign error on account of such instructions. However, it does appear that the appellant requested certain instructions to be given, which were refused, and to the refusal to give such instructions exceptions were duly taken at the time.
The first instruction which appellant requested, and which was refused, is as follows: “That if the plaintiff retained possession of any of the property received by him from the defendant in exchange, and that said property, or the use of same, was of any value and benefit to him or to the defendant, then the plaintiff would not be entitled to recover, and you must find for the defendant.” This instruction should have been given by the court. It appears from the evidence in the case that appellant and appellees entered ■into á contract by the terms of which appellees sold to appellant a pair of mules, in consideration of a crop of corn and fcotton on certain premises described in the complaint. Ap-
The appellant requested the court to give the following instruction to the jury: “That if the plaintiff received from the defendant the crop of cotton, corn, and oats, together with the place on which the same was grown and possession of the house on said place, and that any of said crop was standing ungathered in the field at the time,