Thomas v. Presbrey ( 1895 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

As to the first exception. At the close of the evidence the plaintiff offered six prayers for instruction; the first and third of which were granted; and the second, fourth, fifth and sixth were refused. The bills of exception contain no prayers offered by the defendants.

The second prayer of the plaintiff was properly refused, because it required the jury to determine the question of law, whether, and under what circumstances, the making of the notes would bind the firm. This was plainly a question of law, depending upon the facts to be found by the jury. The fourth prayer asked the court to say to the jury that the question, whether one of the partners was estopped to deny the authority of another partner to indorse the notes sued on in the name of the firm, was one for the jury, under the facts of the case, and not one of law for the court. This proposition was not only erroneous in principle, but was quite inconsequential as means of instruction to the jury, without a definition of an estoppel; and that was for the court to give. The facts to constitute the estoppel, if an estoppel had been created, would have been for the jury to find, but what will constitute an estoppel in any given case is a question of law for the court. The prayer was properly rejected by the court. The fifth prayer was likewise properly rejected, because it proposed to submit to the jury a question of law; viz., whether the firm of Presbrey & Green was liable on the indorsements of the notes by Green in the name of Presbrey & Green. That was the principal question involved in the trial of the case, and its determination rendered it necessary to decide all the legal questions bearing upon the main issue. The facts were for the jury, but the legal conclusions from the facts were for the court. And as to the sixth prayer, that, in view of the finding of the jury and the judgment of the court thereon, has become a mere abstraction. The question at the trial was, whether there was any liability whatever on the part of Presbrey, one of the firm of Presbrey & Green; and not as to the particular nature of the contract liability of the parties, whether joint or several. There was no error in rejecting the prayer.

2. As to the second bill of exception. This exception embraces the general charge of the court to the jury; and, taking the charge as a whole, it appears to have presented the case fully and fairly to the jury. It is assigned as error that the court directed the jury to return their verdict for Presbrey, one of the defendants, as to the $500 note in suit. But there is no exception to this direction, except as it may be contained in the general exception taken to the entire charge of the court. This character of exception, however, cannot be sustained. It has been held repeatedly by the Supreme Court of the United States, that a general exception to a charge, which does not direct the attention of the court to the particular portions of it, to which objection is made, raises no question for review by an appellate court. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 261; Burton v. Ferry Co., 114 U. S. 474, 476. And that the whole charge must be substantially wrong before such a general exception will avail for any purpose. Anthony v. Louisville RR. Co., 132 U. S. 172, and cases there cited.

We have, however, been urged to review the charge of the court to the jury, upon the motion made for a new trial, and which was overruled. But a motion for a new trial is not the subject of an exception, and presents, in an appellate court, no question for review.

There is nothing in the case that requires further remark, and we must affirm the judgment.

Judgment affirmed.