Standard Generator Service Co. v. Stout

321 S.W.2d 47 | Ky. Ct. App. | 1959

PER CURIAM.

This is a motion for an appeal from a judgment awarding Standard Generator Service Company $422.53 in cash and used merchandise to be picked up of the value of $1,000 against John Stout d/b/a Craft Auto Supply Company. The main contention is made by appellant that it was entitled to recover a money judgment for $1,-422.53, but a factual issue was made out by the pleadings and proof on this point. There was ample evidence to sustain that portion of the jury verdict which found the parties agreed certain used automobile parts at fixed prices could be turned over to appellant to be credited against appel-lees’ account sued on.

Another argument concerns the second instruction offered by appellees, which the court gave over appellant’s obj ection. This instruction was erroneous because it was unsupported by any evidence. Still, it is manifest the jury disregarded it in arriving at the verdict, and we have held that the substantial rights of the complaining party have not been violated so as to constitute a basis of reversal when the giving of an erroneous instruction, as was done here, was not prejudicial. See Jarboe v. Shane, Ky., 254 S.W.2d 695.

Wherefore, the motion for an appeal is overruled and the judgment is affirmed.