18 Wis. 373 | Wis. | 1864
By the Court,
All the instructions asked' by the defendant below were properly refused. They proceeded upon the assumption that the plaintiff’s only right of recovery
It is objected that the court erred in the portion of the charge above given, inasmuch as it assumed that certain material facts, such as “ that the grading had been ordered and was chargeable to the lots owned by Gilman” &c. had been established by the evidence, whereas there was no proof upon those points. The court did make use of those expressions, probably because there had been no controversy upon those points on the trial. It seems to have been assumed by both parties that the grading had been ordered by competent authority, that the work was chargeable to the adjoining lots where it was done, and that Gilman owned the lots. Hence the circuit judge naturally used the language he did. But still, if these expressions were improper, and calculated to prejudice the defense, a specific objection should have been.taken to them at the time. There was an exception taken to all that portion of the charge preceding the sentence, “ You will consider whether such subsequent contract has been provedbut this is too general to enable us to review the particular expressions complained of, even if they were objectionable in the sense in which they were used. Certainly it cannot be pretended that the entire portion of the charge excepted to is erroneous. And unless it is, we cannot reverse the judgment upon this general exception to the charge.
We think these remarks dispose of all the material questions in the case.
The judgment of the circuit court is affirmed.