Clark v. Gibson , 1 Morris 328 ( 1844 )

Per Curiam,

Mason, Chief Justice.

This was an action commenced before a justice of the peace, and brought by appeal into the District Court of Linn county. It appears that upon the trial in that court, after the evidence was closed, the court charged the jury, that if they found that the parties had verbally agreed on the trial before the justice of the peace, that the verdict of the jury in the court below should be final, they must find for the defendant; that such verbal agreement was a circumstance for them to consider in bar to the action in the District Court, and that parol testimony was competent to prove such agreement. This is the only error assigned in the case.

We think this was an erroneous instruction. The agreement above alluded to might, if broken, bo the ground of an action, but would not be a bar to that already in court. The contract could not be specifically enforced in a court at law.

But it is contended that the bill of exceptions does not show that the instructions above set forth were material, and although erroneous ought not to avail the plaintiff in error. Where a party calls for instructions which are refused, and he endeavours to reverse a judgment for that cause, he must certainly show in his bill of exceptions that the evidence given rendered such instruction proper. Nor would a judgment be reversed on account of the statement by the court of an erroneous abstract proposition. But the instructions of the court in this case carry presumptive evidence of being practical and applicable to the case. The court would certainly not voluntarily give instructions in that shape, unless there were some testimony to render them applicable and if a party calls for such instructions he ought not afterwards to be permitted to deny their pertinency. Judgment set aside and a new trial ordered.