Prather v. J. Wilson & Co. ( 1871 )

Opinion oe the Court by

Judge Pryor:

There is no evidence of any payment of the debt sued upon except the $814.62, the value of the goods returned, and $45.25 paid by Walsh as their pro rata of the proceeds of the sales of the property assigned for the payment of their debts by appellees.

The tender of the residue of the goods purchased by appellees from appellants, and not received by them can not be regarded as a payment, because they were afterwards sold by the assignee and the proceeds were applied to the payment of other creditors, appellants only receiving their ratiable portion thereof. There is, therefore, no evidence to sustain the verdict.

The instructions, as asked by appellants, appear to have been given, and if they did not present the law of the case they have no right to complain, and even if the instruction given at the instance of appellees was erroneous, the ruling of the court in giving it does not seem to have been excepted to. This court has so often, decided that to avail himself of an error in an instruction, the party against whom it is given, must object to it when it is offered, and if it is then given over his objections, he must then except to the ruling of the court in giving it, that it would seem useless to repeat it. Anri still this ruling is in a majority of cases, as in this, disregarded. We can not consider any error if there be one in giving the instruction as asked by appellees. But as in our opinion the verdict is not sustained by the evidence, the court below should have awarded a new trial to appellants.

Wherefore, the judgment is reversed, and the cause is remanded for a new trial and for further proceedings consistent herewith.