Nisbet v. Gill

38 Wis. 657 | Wis. | 1875

LYON, J.

Some exceptions on behalf of the defendant were taken on the trial to the rulings of the court on objections to the admission of testimony; but they are unimportant, and were not relied upon by the learned counsel .for the defendant as grounds for reversing the judgment. Those exceptions require no further notice.

During the term at which the cause was tried, counsel for the defendant filed an exception “ to each and every part of the judge’s charge to the jury.” Under repeated decisions of this court, if the charge is correct in any material particular, such an exception is entirely insufficient to authorize us, on appeal, to review the charge. That this charge is correct in several material particulars, cannot be doubted. One of these will be mentioned hereafter. Eldred v. The Oconto Co., 33 Wis., 133, and cases cited.

Tbe act of 1874, ch. 194, does not remove tbe difficulty. It provides that, “ in actions hereafter tried, either party may, at any time before the close of the court at which the action is tried, except to any part of the judge’s charge to the jury, and such exceptions may be incorporated into the bill of exceptions and reviewed the same as i'f made before the jury retires.” Sec. 2. The act relates only to the time of taking exceptions, and leaves the law in respect to the necessity of making such exceptions specific, as it stood before the act was passed. We said in Eldred v. The Oconto Co., that the rule requiring exceptions to the charge to be specific, was something more than a mere formal rule of practice or procedure ; that it involved a substantial right. It is none the less so since the legislation of 1874. If there be error in the charge, a specific exception will direct the attention of the court and prevailing party thereto ; and, on seeing the error, the court will set aside the verdict and award a new trial, thus saving the cost and delay of an appeal to this court to correct such error. We should not be justified in forcing a construction of any statute which would give it an. effect beyond what the legislature has expressed or clearly intended ; much less can we do so in the present case, where the statute under consideration breaks down an old, well settled, and, as we believe, a most salutary rule of law.

Neither is the difficulty removed by the motion for a new trial. That was a general motion on the minutes, and stated no reasons why a new trial should have been granted. Whether it was made upon exceptions, or for insufficient evidence, or for excessive damages (R. S., ch. 132, sec. 16), the record does not inform us. Had the motion spepified that some particular portion of the charge was erroneous, inasmuch as it was made during the term at which the action was tried, it might, perhaps, have been treated as a valid exception to such portion, enabling us to review it on appeal. But the motion as made did not enlarge or add to the exceptions previously taken, and cannot benefit tbe defendant on this appeal. On this subject see Hoey v. Hoey, 36 Conn., 386; Waggoner v. Liston, 37 Ind., 357; Cheek v. The State, id., 533; Eden v. Lingenfelter, 39 id., 19; Bartlett v. Lewis, 58 Me., 350. It must be held, therefore, that there is no valid exception to the charge of the court, and hence, that we cannot review it. We regret this, for we have very grave doubts whether, under the circumstances of the case, the correct rule of damages was given to the jury. But, for reasons already stated, the error (if it is error) is beyond our reach.

The testimony tends to show that there were some sticks of unmerchantable wood in some of the piles set apart and marked for the defendant, but that those piles contained the required quantity of merchantable wood. On this testimony two instructions were asked by defendant’s counsel, and refused, and due exceptions taken to such refusal. The proposed instructions are as follows:

“ If the jury find from the evidence that the wood piled up for the defendant, and tendered to or set apart and marked for him, was not all merchantable wood, fit and suitable for the purpose intended by the parties, as called for by the contract, the plaintiff cannot recover, and you must find for the defendant.

“ The defendant has a right to have the 200 cords of wood suitable for the purpose intended in the contract, in a pilé or piles separate by itself; and if the suitable wood was piled in piles with unsuitable wood, the defendant could not be required to assort it to get out that which was suitable and fit for the purpose called for by the contract.”

On the same subject the court instructed the jury as follows: “ The wood measured and offered to be delivered must have been good merchantable wood. If you find from the evidence that it was not good merchantable wood, then it was not a compliance with the implied terms of the agreement, and the plaintiff cannot recover.”

The proposed instructions are objectionable in that, bad they been given,.and had the jury found that there was any unmer-chantable wood in any of the piles, no matter how small or insignificant the quantity, a verdict for the defendant would- have been inevitable. It seems to us that the court gave the correct rule of law on the subject, and properly refused to give the proposed instructions.

Finding no error in the record which we can review and correct on this appeal, we must affirm the judgment of the circuit court.

By the Court — Judgment affirmed.