Davison v. Broach

Warner, Chief Justice.

The plaintiff sued the defendants on the following instrument :

“Due W. H. Broach, trustee of Mrs. Ann Whitlaw and children, two hundred dollars, and due and to be adjusted in settlement, the same to be made as early as practicable. October 28th, 1875.

[Signed] Jas. Davison.

Joe Davison, Security.”

On the trial of the case, the jury, under the charge of the court, found a verdict for the piaintiff. A motion for a new trial was made on the. grounds therein stated, which was overruled, and the defendants excepted.

The court charged the jury “that if they believed from the evidence that there was ah agreement between the defendants and Broach that the accounts should be submitted to Mrs. Whitlaw for her to strike such articles as were not for the benefit of the family, and they were not submitted, plaintiff should recover.” In view of the facts of this case, the charge of the court was error. The charge should have been, that if the accounts were not presented to Mrs. Whit-law for her to strike therefrom such articles as were not for the benefit of the family, within a reasonable time after the execution of the instrument sued .on, then the plaintiff would be entitled to recover. The view which we have taken of this case renders it unnecessary to express any opinion in relation to the overruling of the defendants’ motion for a nonsuit.

Let the judgment of the court below be reversed.