9 Wash. 5 | Wash. | 1894
The opinion of the court was delivered by
— The appellant contracted with one Schenck for the erection of a school house, but took no bond as is
One of the points alleged is, that there was no evidence to sustain the verdict, but after an examination of the proofs we think this point is not well taken. It is further contended that the court erred in the instructions given to the jury, and especially in giving the following:
“2d. In determining the question as to whom such materials were sold and delivered you will take into consideration all the circumstances surrounding the parties to this action and the parties to said sale as disclosed by the evidence and also what the plaintiffs say as to whom they sold and delivered the materials. (To the giving of which instruction the defendant then and there, at the proper time, excepted.)”
It is urged that this instruction is erroneous on the ground that it especially calls attention to the testimony of the plaintiffs — “what the plaintiffs say” respecting the sale — and gives such testimony undue prominence, thereby impressing the jury with its importance, to the exclusion of the testimony offered by the defendant upon this point. Eespondents contend that this court cannot consider the instructions, for the reason that no sufficient exception was taken thereto; that the exceptions must specify the grounds of objection. But we are of the opinion that this point is not well taken, under our present appeal law, which was in force at.the time this action was tried. This
We are also of the opinion that the instructions are erroneous as claimed. We might not so hold if the above was the only one wherein the court had specifically referred to the plaintiffs’ testimony; but several such references were made, and there was nothing elsewhere in the charge to counteract the effect thereof. No reference was made throughout such instructions to the testimony offered by the defendant, except in the most general terms, as by a reference to all of the circumstances; and upon reading said instructions we are impressed with the idea that the trend thereof was to give undue prominence to the testimony of the plaintiffs, to the exclusion of the testimony offered by the defendant, and the result was that the cause was not fairly submitted to the jury.
It is further contended that the court erred in instructing the jury “that if they [meaning the plaintiffs] satisfy your mind that there was a mistake [referring to the charge on the books ], and the evidence is not in conflict, you will find that there was a mistake and that the goods were sold to Mr. Schenck.” We think this was likely to mislead the jury, for there was no conflict, except perhaps remotely and indirectly as the result of other testimony, as to the explanation offered by the respondents as to how the lumber came to he charged on their books to the firm instead of to Schenck individually, the force of which they sought to avoid. They claim it was due to a mistake. There was other evidence, however, introduced by appellant, independent of the charge on respondents’ books, to show that the sale was made to the firm, and the jury might lose sight of this, or not properly consider it, in consequence of thus
Reversed.
Dunbar, C. J., and Anders, Hoyt and Stiles, JJ., concur.