18 Ind. 446 | Ind. | 1862
Suit to recover the value of one “ pen full of corn.” Answer, a tender and the statute of frauds. Reply, denial: Demurrer to the reply. The re$ly was good as to the paragraph of the answer averring a tender, and as to the other, in the particular form in which the answer was pleaded, it was also good.
Trial by jury, verdict and judgment for the plaintiff.
It is insisted that the evidence does not sustain the verdict, and that the Court erred in instructions given and refused.
The plaintiff and defendant were each sworn, and differed in their statements as to whether the defendant was confined, by the terms of the contract, to take a certain pen of corn at a fixed price, or none; or whether he had the privilege of taking the same or 200 bushels thereof at an agreed price. The person called to witness the contract agreed with the plaintiff. This made such a case as forbids our disturbing the verdict on that point.
We see no error in the instructions given; that refused is substantially embodied in those given. The. record appears to show a case for the plaintiff', so far, that no .error is presented that should reverse the judgment.
The verdict specially found that there was no tender proved. Afterwards the defendant moved the Court to permit him to withdraw the sum deposited with such paragraph of the answer, which was overruled. Was the ruling correct ? We think it was, if our statute, permitting a stay of execution,
The judgment is affirmed, with 3 per cent, damages and costs.