Jones v. Osgood

Jones v. Osgood. General exception to charge. A general exception to the charge, containing distinct propositions, is unavailing, unless ea«h of them be erroneous, and to the party’s prejudice. Appeal from the general term of the Supreme Court, in the seventh district, where a judgment entered upon a verdict in favor of the defendant, had been affirmed. This was an action of replevin in the delinet, for a canal-boat, in. which the property had been delivered to the plaintiff by virtue of the writ. The defendant pleaded: 1. That he did not detain the boat. 2. That the property in the same was in one Lowell. 3. That it was in Lowell and the defendant. • *Upon the trial, the judge (Welles, J.) charged -* the jury, that the contract proved between the plaintiff and Lowell, was a conditional sale of the boat to Lowell, and gave him a right to possession, until default in payment. That the sale of the boat by Lowell to the defendant, and the transfer of the possession to him, subject to the contract, were rightful, and did not work a forfeiture, so as to authorize the plaintiff to take possession. That except upon forfeiture, by failure of payment, the plaintiff was not entitled to possession. That if there was not sufficient time for Lowell to manufacture the boots and shoes and transport them from Mohawk to Rochester, between the time of the demand and the commencement of the suit, or if the specification given by the plaintiff to Lowell, of the kinds of boots and shoes, was not sufficient, which was a question for the jury, then the defendant was entitled to recover. That if they found a verdict for the defendant, they should give him any actual damages he had sustained; that, ordinarily, interest upon the value of the property was the measure of damages. That if they *found that the plaintiff's conduct was malicious and oppressive in *- replevying the boat, they had the right to punish him with exemplary damages. If his conduct was free from such imputation, and in good faith, then the actual damages which the defendant had sustained, was all he was entitled to, besides the value of the boat. But that the amount of damages in either case was entirely in the discretion of the jury. The plaintiff ’s counsel excepted to the whole charge as thus given, and to each part of it. There was- a verdict for the defendant, and the judgment entered thereon having been affirmed at general term, the plaintiff took this appeal. Comstock, for the appellant. Beardsley, for the respondent. [MAJORITY — Johnson, J.] Johnson, J. (after stating the facts.) — The charge contained several propositions; as to some of which, there is no doubt that they were in accordance with the law; some of them are, to say the least, of doubtful correctness. Upon the argument, two questions were made; one, that the judge erred in his construction of the contract, in holding that Lowell was entitled to a reasonable time, after demand, to manufacture the boots and shoes required under the contract; the other, that the instructions of the judge as to damages, were incorrect. The exceptions taken did not call the attention of the judge to the points which were claimed to be erroneous; they did not suggest to his mind, what the counsel excepting would have him hold, or wherein his charge was wrong. If the counsel had presented to the judge, the two distinct points which he makes here, we cannot say how he would have disposed of them. It has been held, in many cases, that the party complaining of the charge of a judge, must put his finger on the point of which he complains; if he does not do so, no court of review can regard it. The rules upon this subject are tending rather to increased strictness, and not at all to relaxation. They have their foundation in a just regard to the fair administration of justice, which requires, that when an error is supposed to have been committed, there should be an opportunity to correct it, at once, before it has had any consequences; and does not permit the party to lie by, without making his objection, and take the chances of success on the grounds on which the judge has placed the cause, and then, if he fails to succeed, avail himself of an objection, which, if it had been stated, might have been removed. A general exception to a charge, and every part of it, when the charge involves more than a single proposition of law, and is not in all respects erroneous, presents no question for review upon appeal. (Lansing v. Wiswall, 5 Denio 213.) The judgment of the supreme court should be affirmed. Judgment affirmed.