Springer v. Hubbard , 82 Me. 299 ( 1890 )

Foster, J.

The only question submitted to the jury was whether there had been a completed sale of the plaintiff’s half interest in a café and fixtures to the defendant. The plaintiff claimed that the sale was actually completed. The defendant denied it.

The plaintiff having received in payment a check that was admitted to be a forgery, brings this suit to recover the consideration of the sale, — the price of the property sold. Upon a charge that presented the issue fully and fairly and stated the law correctly in its application to that issue, the jury found for the plaintiff and returned a verdict for the amount of the consideration.

The first requested instruction could have no application in an action like this, which is for a recovery of the price, and where, to recover at all, it was necessary for the plaintiff to prove a completed sale. The instruction asked for, assumes that the action is for the breach of a contract executory in its nature. No such cause of action is set out. The requested instruction was therefore inapplicable and properly refused.

The same may be said in relation to the second and third requests.

Requested instructions should be made applicable to the facts in evidence. There was no evidence or position assumed in the case upon which the requested instructions could properly bear, and without which an exception to the refusal of the court to give a requested instruction will not be sustained. Brackett v. Brewer, 71 Maine, 478.

The evidence fully sustains the verdict.

Motion and exceptions overruled.

Peters, C. J., Walton, Virgin, Emery and Haskell, JJ., concurred.