| Ark. | Nov 27, 1922
No exceptions were saved to the instructions given by the court, and, under the settled practice in this State, no assignment of error with regard to the instructions can be considered on appeal.
It is next urged that the evidence is not legally sufficient to support the verdict. We do not agree with counsel for the defendant in this contention. According to the evidence in behalf of the plaintiff, the husband of the defendant bought the piano himself, and mortgaged it to the bank for an indebtedness due it. The mortgage was duly assigned to the plaintiff, and there remains due and unpaid on it a sum of money which is equal to the value of the piano.
It is true that this evidence was contradicted by the defendant, but the jury has settled the question of the credibility of the witnesses in favor of the plaintiff, and the evidence warrants the verdict.
It is next insisted that the court erred in not permitting the defendant to introduce in evidence a purported copy of the contract which she had made for the 'purchase of the piano. According to the evidence of the defendant, she purchased the piano from the factory which made it, and a duplicate written contract was executed. Subsequently her copy of .the contract was destroyed by fire, and she wrote to the factory and obtained a copy of the contract from it. It was this copy which she desired to introduce in evidence. The court properly refused to allow the instrument to be introduced in evidence until it had been properly identified. The piano company had the original contract, and could have identified the instrument offered in evidence as a' copy of it, if such was the fact.
The next assignment of error is that the court erred in refusing to allow the defendant to amend her motion for a new trial and to grant the same. After the term of the court at which the case was tried had lapsed, the defendant offered to file an amended motion for a new trial on the ground of newly discovered evidence. Tn her motion she stated that, after the term at which the ease was tried had lapsed, she found a receipt issued to her by the piano company for a payment which she had made on it, and also a letter stating that the payment paid her account in full, and that the company would cancel her contract and give her a clear title to the piano. The letter itself amounted to nothing more than hearsay. Tt was the letter of a third person to her with regard to a payment made on the piano, and could not be used as evidence in her behalf against one who was asserting title to the piano.
Again, it may be said that she could have proved by the company which sold her the piano the fact of the sale, if such was the case, and that she knew of the existence of this proof before as well as after the trial of the case.
Tt follows that the judgment will be affirmed.