Foster v. Brennan
| Decision Date | 29 November 1932 |
| Docket Number | 7258. |
| Parties | FOSTER et al. v. BRENNAN. |
| Court | West Virginia Supreme Court |
Submitted October 11, 1932.
Rehearing Denied Dec. 29, 1932.
Syllabus by the Court.
Exception to refusal to set aside verdict may be noted at any time during same term.
Motion to vacate judgment entered on verdict, made during same term because of failure to except, will be considered as tantamount to noting exception.
Where there is appreciable evidence tending to prove case assumed instruction should be given, if correctly stating law.
In action for breach of contract to repurchase cattle, refusal of defendant's instruction on change in condition because cattle were with calf at time for delivery held error under evidence.
1. An exception to a trial court's refusal to set aside a jury verdict and award a new trial may be noted at any time during the term at which the verdict is rendered. And where the movant, during such term, directs the trial court's attention to his failure so to except but moves the court to vacate its judgment entered on said verdict because thereof, such motion will be considered as tantamount to noting an exception on the record to the court's refusal to set aside the verdict.
2. If there is appreciable evidence tending to prove a case supposed in an instruction, the instruction should be given if correct in its law. Hopkins v. Richardson, 9 Grat. (50 Va.) 485.
Error to Circuit Court, Lewis County.
Action by H. G. Foster and others against Patrick J. Brennan. To review a judgment in favor of the plaintiffs, the defendant brings error.
Judgment reversed, verdict set aside, and a new trial awarded.
Linn M Brannon and L. H. Barnett, both of Weston, for plaintiff in error.
Herbert M. Blair, of Weston, for defendant in error.
Plaintiffs recovered judgment of $648.85 against defendant for an alleged breach of contract; and defendant prosecutes this writ of error.
In October, 1929, defendant, a cattle dealer, purchased ten heifers from a Dr. Life which he, in turn, sold to plaintiffs and immediately repurchased them for delivery after July 15th, following, at 9 1/2 cents per pound. Under this contract (evidenced by a paper writing executed by defendant on February 11, 1930), defendant agreed to take fourteen heifers after July 15, 1930. The evidence is not clear as to where the additional four heifers came from. Brennan says the four heifers were the property of plaintiffs, while the latter claim they purchased fourteen heifers from Brennan in October, 1929, and paid him therefor by check for $770.60 and by trading him two steers and a bull, aggregating a total of $981.90. Defendant did not take the heifers after July 15, 1930, and after notifying defendant of their intention to dispose of them, plaintiffs sold the cattle at a loss of $630.17, and instituted this action of assumpsit against defendant for damages for breach of contract. The jury found in favor of plaintiffs, and defendant charges error in the court's refusal to give instructions offered by defendant.
Before discussing the trial court's refusal to give instructions, we must consider plaintiffs' contention that the evidence is not properly a part of the record and cannot be considered for any purpose. According to the record, the court's order of March 16, 1931, shows that "the defendant moved that the verdict of the jury returned at a former day of the present term be set aside and that a new trial of the action be awarded on the ground that the court erred in refusing the instruction offered by the defendant," which motion the court overruled. There was no exception offered to that ruling, but on March, 26, 1931, counsel for defendant moved the court to set aside the judgment pronounced on March 16th and filed an affidavit in support of said motion wherein counsel deposed that upon the court's overruling the motion to set aside the verdict, affiant requested plaintiffs' counsel to save exceptions for defendant in the order to be entered on said motion. This is denied by plaintiffs' counsel. Counsel for both parties agree that the order entered was prepared by the clerk of the circuit court and showed no exception to the court's refusal to set aside the jury's verdict.
The necessity for notation in the record of an exception to the court's refusal to set aside a jury verdict is well established in this jurisdiction. State v. Rollins, 31 W.Va. 363, 6 S.E. 923. Such an exception, however, may be noted at any time during the term. Gilmer v. Sydenstricker, 42 W.Va. 52, 24 S.E. 566. In the instant case, defendant's counsel sought on March 26th to have the judgment of the trial court set aside because the order of March 16th did not note an exception to the court's refusal to set aside the verdict. The trial court was clearly correct in its refusal to vacate its judgment for such reason. The proper motion would, of course, have been so to correct the record as to note an exception. The affidavit of defendant's counsel indicates such an objective, and since the trial court's attention was directed to the omission within proper time, we are of the opinion that the record so made is tantamount to an exception to the court's refusal to set aside the verdict.
The error assigned by defendant for reversal is the trial court's failure to give instructions offered by defendant. Consideration of such an error involves a review of the evidence, which is properly certified to this court.
Instructions offered by both litigants were refused and the court gave none.
Instruction No. 2, offered by defendant and refused, reads as follows "The Court instructs the jury that if they believe...
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