Frizelle v. Kaw Valley Paint & Oil Co.

Hall, J.

The only question presented for our consideration is as to the action of the circuit court in refusing to instruct the jury not to accord the plaintiff a credit for the three, items mentioned in the foregoing statement of facts.

This question we do not deem it necessary to decide, for the reason that the defendant could not have been injured by the action of the court in the respect named ; because, it is plain that the jury did not allow the plaintiff any credit for said items: the jury did what the defendant asked the court to tell them to do.

It was conceded by the defendant that the plaintiff was entitled to the amount sued for, viz: $393.37, less the aggregate sum of the three items. That sum, it was claimed by defendant, was one hundred and seventy-three dollars; and, therefore, according to defendant’s position, the plaintiff should have had judgment for $393.37 less one hundred and seventy-three dollars. The jury gave him a verdict for $3'93.37, less $168.37, to-wit, two hundred and twenty-five dollars.

It seems clear that the jury deducted the amount of the three items as computed by them from the amount claimed by the plaintiff. The defendant’s computation was made on the basis that there were thirty-six weeks in the first eight months of the year 1885. There were not that number of full weeks, the number was thirty-four and a fraction. Besides, the plaintiff charged for washing while he was traveling, and he did not begin to travel until the fifth or sixth of January. If the jury computed the item charged for washing on the basis indicated, the result reached by them was almost exact. But even if we should admit the correctness of the defendant’s computation and the incorrectness of that made by the jury, the judgment should not be reversed for tliat reason. Tbe error, if such there be, is not an error induced by the action of the court in refusing the instruction asked by the defendant, but is an error in computation made by the jury for the purpose of doing that which the defendant asked the court to instruct them to do. No complaint is made by the defendant on account of mistake made by the jury in figuring on the amount of the item charged for washing, and hence no mistake of that sort will be considered by us. It is clear that, although the court did not instruct the jury to not allow the plaintiff credit for the items named, the jury did not allow the plaintiff any such credit, and that, therefore, no harm was done by the action of the court.

In our opinion the judgment is correct and ought to be affirmed. It is so ordered.

All concur.