Cannon v. Campbell & Jones

Jacicson, Chief Justice.

1. The controlling question which this record makes is this : When one is sued on an accepted draft, can he set off thereto money paid out by him on a prior acceptance of another draft for the plaintiff, when the plaintiff, at the same date of the acceptance, gave him a release of all obligation to pay on a separate paper, if the draft fell into the hands of an innocent holder, and was paid to him, or when presented by the plaintiff, it was paid at his special instance and request ? The court below so charged and put the law of the case to the jury squarely there — on either of these alternatives, holding that the set-off is good.

The acceptor was bound to pay the draft if an innocent holder presented it, because on the face of it the acceptance was unconditional and the draft negotiable. Therefore, that payment being compulsory, he could set it ■ off, no funds of the drawer being in hand, and the law making him liable on the draft.

If it was presented by the payee and paid on such presentation, it was money paid by the request of the payee, and an action for money paid out for his use at his special instance and request would lie. Therefore, in that event, he could set it off. So that in either case, as put by the court, the set-off was allowable, and there is enough evidence to authorize the charge and support the verdict.

2. But it is insisted by plaintiff in error that the court erred in charging on an assumed state of facts, and that such error demands a new trial.

Whilst the record does show that the testimony does not authorize the precise language used by the judge, yet the legal effect of the chárge of the judge is fully sustained by it. This ground of error, therefore, rests on this principle, that if the precise language of the court does not accord with that of the witness, a new trial must be granted, though the legal effect of the charge, as made, be the same as if the judge had used the words in the evidence. V

We cannot agree to the principle. Whilst it would be better that the court adhere to the testimony as strictly as possible, yet where the legal effect of what he does say is exactly the same as if he had employed the other language, it is not such error as ought to require a new trial.

The obvious reason is that the jury were not, and could not have been, misled, and thus the plaintiff in error was not hurt. And it is only for errors which hurt him that he can complain. If the court put the point of law upon facts which make the same case in law precisely as the facts sworn to by the witnesses, though varying language to make the point were intelligible to the jury, the error, if error at all, is harmless.

On an examination of the evidence and charge of the court, we cannot say that there is not evidence to support the verdict, or that the court erred as to the law to the detriment of the plaintiff in error. The judgment must therefore be affirmed.

Judgment affirmed.