Wheeler v. Sedgwick/Opinion of the Court

We find no error in this record. To say the least, there was some evidence before the jury tending to prove the items of the account upon which the suit was brought, and the court, therefore, properly refused to instruct the jury to find for the defendant.

The jury were not instructed that the plaintiff was entitled to recover the amount of $26,458.90 at all events, but only in case all the questions in dispute were found in his favor. That there was no controversy as to the amount of the recover, if the other questions were settled in favor of the plaintiff, is evident from the fact that a witness was called, who, without objection, furnished the jury a calculation of interest upon the several items of the account as stated. No exception was taken to the charge as given upon the material points in litigation between the parties.

The attention of the court below was not called to the particular objection now taken to the recovery of one-half the amount shown to be due upon the account headed, 'G. M. W. Chic. and N. W. account,' to wit, that it was a joint account of the defendant and one of the bankrupts, and that the defendant could not be sued upon it alone. This being the case, it is too late to make it now. The exception, as it appears in the record, is 'to the ruling that the plaintiff was entitled to recover $26,458.90.' If it was desired to exclude the item of $6,125.62 because of the non-joinder of another party originally interested in that part of the account, the point should have been distinctly and specifically made, and an appropriate exception taken upon the record. The evidence to prove this item in the account was not objected to. The question put to the witness Comstock, which was objected to, was not answered.

We see nothing in the exceptions to the rulings of the court upon the admissibility of testimony which requires particular mention, as we are satisfied of their correctness.

Judgment affirmed.