63 Me. 437 | Me. | 1873
The first requested instruction was properly refused because the evidence did not warrant it, as appears by a report of the evidence which is made part of the bill of exceptions, and must control its allegations as to_ matters of fact. The plaintiff testified that nothing was said about the stock when the
The second requested instruction was, also, properly refused. Proof is not evidence, but the effect of evidence. A fact or proposition is said to be proved when the result of the evidence adduced in support of it is undoubting assent to its certainty. The report of the evidence produces no such result as is affirmed in the second requested instruction. The evidence on both sides by no means proves that the agreement between the parties was for the maintenance of the plaintiff and his wife at the house on the Harmon farm. The variance between the request and the evidence was a sufficient reason for refusing to give the requested instruction.
But if the language of the requested instruction is to be understood as affirming that there was evidence on both sides tending to prove the proposition it contains, it was, also, properly refused. The conveyance set forth in the writ is identical with the one proved. The variance alleged does not relate to the contract of conveyance, but to the consideration therefor. Even in this respect, upon the plaintiff’s theory of the evidence, it does not contradict, and is not inconsistent with, but is only additional to, the allegation in the writ. The defendant’s complaint is, that the writ does not set forth the whole of the consideration of the conveyance, inasmuch as it omits to state the place of per
But the alleged variance, if any, is immaterial in this case, as the complaint of the plaintiff is, not that the defendant refused to support him elsewhere than upon the farm conveyed, but that he refused to support him there, in consequence of which he was compelled to leave it; and the defence is, that if the defendant is bound to support the plaintiff, he has fulfilled his obligation, or has ever been ready to do so. The defendant, therefore, was not aggrieved by the ruling, and has no legal ground of exception.
Nor can the motion be maintained. The evidence was conflicting, as is usual in cases of family broils. The jury were fortunate in being able to agree upon a verdict in the midst of such a maze of contradictions, criminations, and recriminations; and the court is little inclined, without stronger reasons than have been called to its attention, to reopen this, as is to be hoped, the last of a series of suits that have been scarcely less discreditable to the parties concerned than expensive to the county.
Motion and exceptions overruled.