Gilbert v. Berryman , 200 Ky. 824 ( 1923 )

Opinion of the Court by

Judge Clay

Affirming.

W. A. Berryman sued M. E. Gilbert to recover on three claims aggregating about $300.00. In the petition he alleged that all matters and differences between him and Gilbert had been submitted to arbitration and an award rendered allowing Gilbert a credit of $80.00, and holding that Berryman was entitled to recover the balance due. On motion of Gilbert, Berryman was required to elect, and did elect, to proceed on the award. Gilbert filed an answer and counterclaim denying that all matters and differences- had been adjusted by the award, and setting up certain claims against Berryman. On final hearing the issues involved were submitted to the jury, which returned a verdict for $89.00 in favor of Berryman. Gilbert appeals.

It is first insisted that the finding of the jury was larger than the sum prayed for in the petition. While the petition prayed judgment for only $80.00, it is clear from the petition that Berryman sought to recover the amount of his claim, less a credit of $80.00, and that the case was so treated and understood by the parties. That being true, we are not disposed to reverse the case merely because of the clerical error in praying judgment for the credit instead of the balance after allowing the credit.

It is also insisted that the court erred in the admission and exclusion of certain evidence, but as the case 'is here without the instructions, such error is not reviewable.

The reason for the rule is that in the absence of the instructions showing what issues were submitted to the jury, we have no way of determining whether the court’s ruling© in the admission or rejection of evidence were prejudicial or not.

Judgment affirmed.