Frauenthal v. Bridgman
| Decision Date | 17 March 1888 |
| Citation | 7 S.W. 388 |
| Parties | FRAUENTHAL <I>v.</I> BRIDGMAN. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Logan county; J. S. LITTLE, Judge.
Max Frauenthal, plaintiff, sued William Bridgman, defendant, in replevin, for certain personal property. Judgment for defendant, and plaintiff appeals.
L. C. Balch, for appellant. Clendeming & Read, for appellee.
The two points relied upon by the appellant to reverse the judgment in this case go back to the same question, viz., the admissibility of parol evidence, which, it is said, varied the terms of a written contract between the parties to the suit. It is argued that the judgment cannot stand, because, when the incompetent testimony which went to the jury is disregarded, the verdict is not sustained by evidence; and also because the court erred in basing one of its instructions to the jury upon the incompetent evidence. It may be conceded that the evidence was incompetent. But no objection was made to its introduction, and there was no effort to cause it to be excluded from the consideration of the jury. The appellant accepted the issue tendered by the appellee, and introduced evidence in rebuttal of that presented by him. No specific objection to the instruction now complained of was made at the trial. It is not contended that the charge is wrong if the evidence is unobjectionable. Several distinct instructions were given to the jury in no wise connected with the incompetent evidence. Only a general exception was made to the charge. It did not designate any specific part of it as objectionable, and it must be disregarded. The appellant's acquiescence in the admission of the evidence, and his failure to make specific objection to the jury's consideration of it, were sufficient to lead the court to believe that he waived his right to exclude the evidence, and desired to go to the jury unembarrassed by any advantage to be gained by closing the lips of his adversary as to the transactions had between them. It would be manifestly unfair to hear his objection after he has voluntarily taken his chance at winning the verdict on the line adopted, and lost. The same reasons apply to the objection made to the verdict. When the sufficiency of the evidence to sustain the verdict is the question to be determined, full weight and consideration must be given to relevant testimony, which would have been excluded at the trial had objection been made. A verdict obtained upon incompetent evidence admitted...
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