Docket No. 64 | Mich. | May 31, 1917
(after stating the facts). The first assignment is based upon a ruling stinking out testimony elicited on redirect examination of plaintiff. He had testified, more than once, that defendant had occupied the premises in question for several years, without á written lease, holding from month to month. The fact was not in dispute. The recross-exámination and redirect examination of plaintiff, as appears by the record, and the ruling complained about, are as follows:
“Recross-examination:
“Q. Who did you say occupied the place at 103 Montcalm street after the De Carries left it?
“A. Mrs. Gallagher.
“Q. Did you give Mrs. Gallagher any lease?
“A. No, sir.
“Redirect examination:
“Q. What is the fact, whether or not you gave any one any lease?
“A. No, sir.
“Q. And they staid with you for years?
“A. Yes, sir.
“Mr. Sherman: I move that the last question and answer be stricken out.
“The Court: It may be.
“Mr. Pound: Note an exception.”
Whatever the value to plaintiff of the fact of defendant’s continued occupancy may have been, it was not lost by this ruling. The fact remained proven and undisputed.
The second, third, fourth, fifth, and sixth assign
The seventh assignment is based upon the argument of counsel for defendant hereinbefore referred to. Under repeated rulings, the assignment is entitled to no notice. Furthermore, the fact stated by counsel in his argument to which the first exception was taken was, as I have already indicated, an undisputed fact in the case.
The remaining assignments relate to the refusal of the court to charge as requested, to alleged misdirection in the charge given, to the refusal of a npw trial. It is especially contended that prejudicial error resulted from the statement made by the court, above set forth, in which the testimony of certain witnesses upon the vital question in the case is contrasted. A fair analysis of the charge shows no misstatement of facts. It must have been evident to an intelligent juror that whether the alleged contract was made depended upon what was said at the interview at which three witnesses were present, two of them being the parties to this suit. With or without the advice of the court, the jurors were bound to analyze the testimony of. each witness and consider which would be believed. It seems to me that the advice to the jury was cautionary only and not calculated to exalt the contention of either party. The court, in substance, gave the instructions requested, excepting the first one, and I am not able to find any misdirection in the charge. The motion for a new trial is based upon no point not already considered, and it follows it was not error to refuse it.
The judgment is affirmed.