| Mo. | Jul 15, 1850
The principal error assigned in this case is the refusal of the court to give the two last instructions asked by the plaintiff. This action was upon a note given in consideration of the purchase of a patent: right for atmospheric churns, and the defendant attempted on the trial to satisfy the jury that this patent-right was valueless. No instructions were asked by the plaintiff, and to which, of course, no objections can be taken. In the present condition of the case, with a verdict for the defendants found under an instruction given at the instance of the plaintiff, the second and third instructions asked by the plaintiff would seem to be mere abstractions. The jury by their verdict have determined that the atmospheric churn was of no value ; it becomes a mere abstraction to inquire now what the law would be, in the event that the.patent churn was found to be of some value. It is, in other words, useless to inquire whether a partial failure of a note is a good defense at law to an action upon the note, since the jury have in this case, under an instruction asked by the plaintiff, found a total failure. The plaintiff desired the court to instruct the jury that they must find a general verdict for the defendants, or for the plaintiff, and that they could not take note of any mere partial failure in the consideration of the note. The court refused to give such instructions, but the jury have found generally for the defendants. If therefore the instructions asked by the plaintiff were the law, of what avail could they have been to him, since the jury by their verdict have negatived the hypothesis upon which those instructions were based ?
Objections were taken to all the testimony introduced at the trial by the defendants, for the purpose of proving the consideration of the note, and the failure, total or partial, of that consideration. None of these objections seem to be relied on here, except the one made to the introduction of the bill of sale from Watkins to McClanahan & Co. The objection to this paper was that no proof was offered previously to its introduction, to show that the makers of the note sued on constituted the firm of John McClanahan & Co., to whom the bill of sale was made. We cannot perceive the force of this objection. The suit was not upon this bill of sale, it was a mere collateral paper, introduced for the purpose of explaining the transaction which led to the note, which was the subject of the suit. The objection goes to the sufficiency of the proof, not to its competency or relevancy, and this was for the jury.(
(a) The jury are the sole judges of the evidence — Jones v. Talbot, 4 Mo. R. 285, and note.