Freeman v. . BrownFreeman v. . Brown
аfter stating tbe case: Tbe form of tbe issues submitted by bis Honor, to wbicb no exception was taken by tbe appellants, оr other issues tendered by them, renders it unnecessary to consider several exceptions appearing in tbe record and pressed upon our attention. Tbe first issue was to determine tbe existence of an express contrаct, as set forth in that issue. Tbe evidence of tbe plaintiff himself, tending to show services performed by bim for bis father, from wbicb tbe jury could imply a contract and fix their value as upon
quantum meruit,
was immaterial, and we cannot see — certainly, as no рart of bis Honor’s charge is sent up in tbe record — that tbe defendants were prejudiced by tbe admission of it. If this evidence were material or pertinent to any issue, its competency would present a difficult question for solution, under tbe dеcisions of this Court.
Dunn v. Currie,
The seventh exception is thus stated in the rеcord: “Here the plaintiff offers in evidence the deposition of Hattie Freeman. The defendant objects and moves to suppress the deposition, for that the same was taken before there was issue joined in the-causе, in that the answer had not been filed at the date of taking the deposition. Motion denied and objection overrulеd. Defendant excepts.” This exception cannot be sustained. The motion to suppress the deposition ought to have been made, at latest, before the trial was entered upon. Section 1647, Revisal;
Ivey v. Cotton Mills,
The eighth, ninth and tenth .exceptions present the question, by motion to nonsuit and by refusal of his Hоnor to direct the jury to answer the first issue “No,” whether there was sufficient evidence to take the case to the' jury. Sеveral witnesses for plaintiff testified as to statements made t;o them at various times and places by the' intestate, frоm which the jury could fairly and reasonably find that the express contract, stated in the issue, existed between plaintiff and his father. While no one of the witnesses testified in the exact language of the issue, we do not understand that to be necеssary. Where a motion to dismiss an-action is made, under the statute, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury, if the case had been submitted to them, might have found those facts from the testimony.
Cotton v. Railroad,
The eleventh exception is to the refusal of his Honor to give the following charge, at the request of the defеndants: “That the plaintiff’s action is barred by the statute of limitations, except for services rendered, if any, for the three years next preceding the death of the defendant’s intestate.” In the statement of the case on appeal we find this statement: “It was agreed, by consent, that if the jury answered the first issue ‘Yes’ the court should answer the other issues for the jury as found in the record.” In view of this statement, we doubt if this exception is presented for consideration; but, passing this, we do not think his Honor should have given the instruction prayed. The finding of the jury to the first issue brings this ease clearly within the principle, declared in
Miller v. Lash,
No issue as to the value of plaintiff’s services was submitted;, but, in view of the counterclaim set up by the defendants, both parties seemed tо conclude that the value of plaintiff’s services and his liability upon the matters set up in the counterclaim could bе more justly and accurately determined by a referee and the stating of an account by him. Having found no reversible error in the trial below, the judgment is affirmed.
No error.