Voorman v. Voight, No. 3,859

No. 3,859 | Cal. | Jul 1, 1873

By the Court:

We are of opinion that the exceptions taken to the evidence of Schultz and Voorman cannot be maintained. The objections were general against their admissibility for any purpose whatever. It is clear enough, that had Yoight been the sole defendant in the action, the evidence objected to would have been admissible as against him. If, as to his codefendant Spreckels, a different rule would obtain, by reason of the latter being a guarantor only (a question not necessary to consider), the objection should have been limited accordingly, or an instruction asked upon the point. Nor do we think, on looking into the instructions, that there was error in instructing the jury that, if the plaintiffs had substantially complied with the contract, they would be entitled to a verdict, or that the jury were misled by that expression occurring in the instructions given. The case at the trial was reduced to a single issue as to whether the packages in which the spirits were contained were “ good packages,” as required by the contract sued upon. The jury were told in substance, that the delivery of packages not sufficient to hold the spirits or which- would discolor it so as to render it unmarketable, would not amount to a substantial compliance with the contract upon the part of the plaintiffs; to instruct them in this connection, that a substantial compliance with the contract would entitle the plaintiffs to recover, was only to say that, if the packages delivered were sufficient in these respects, they should find for the plaintiff, and we think that, as thus understood, the case was correctly put to the jury upon the single issue involved at the trial.

Judgment and order affirmed.