Huntzinger Co. v. Devlin

Argued October 19, 1923. This is an action to recover a bill for printing a paper-book and the record, in a former appeal to this court, in which the present defendant was the appellant. The trial in the court below resulted in a verdict and judgment in favor of the defendant, and the appeal is by the plaintiff.

The only question involved in this case was one of fact. The representative of the plaintiff who received of the attorney for the defendant the order to do the printing in question testified that the order was given in the usual manner; that nothing was said about Powell, the attorney for the defendant, having taken the appeal upon his own responsibility or that he alone was to be individually liable for the cost of the printing. Powell testified that when he gave to Lyle, the representative of the plaintiff, the order to do the printing he distinctly notified him that Devlin was not responsible for what he was doing, that he was taking the appeal upon his own responsibility, and that he alone was to be individually liable for the cost of the printing. This was the only issue raised by the pleadings and which arose out of the evidence. The court instructed the jury, in substance, that it is within the scope of the authority of an attorney to bind his client for the printing of the brief and record, in an appeal, and that this defendant was liable for the cost of this printing, unless the jury were satisfied from the evidence that the plaintiff had express notice, at the time the order was given, that Powell alone was to be individually liable and that Devlin was not to be charged. This question of fact, the only question really involved in the case, was left by the court to the jury with instructions in all respects proper and of which we have here no complaint. The case was one which must necessarily be submitted to a jury, the evidence was conflicting and the credibility of the witnesses was for the jury; it is not for us to say that the verdict was against the weight of the credible evidence, nor would we be warranted in declaring that the court was guilty of an abuse of discretion in refusing a new trial. The second, third, fourth and fifth assignments of error refer to exceptions to the admission of evidence, and offend against Rule 26, in that they do not quote the evidence which was admitted under the exceptions, nor is any attempt made to excuse compliance with that rule in the manner provided by Rule 36. Those assignments of error are for this reason disregarded. All the assignments of error are dismissed.

The judgment is affirmed.