Sturgeon v. Hock

i. contract : damages. ’ I. The defendant, as applicable to the case made by the counter claim, asked the court to direct the jury that if no time was agreed upon when plaintiff was to remove his corn from the field, the law would require it to be done in a reasonable time, and if any damages resulted from the failure of plaintiff to remove it within a reasonable time, defendant was entitled to recover, upon his counter claim, the amount thereof. The instruction was . properly refused for the obvious reason that it contemplates a contract not set xip in the counter claim of the defendant upon which he seeks to recover. The contract pleaded required the plaintiff to perform it at a fixed time; that contemplated in the instruction required performance in a reasonable time and was not the contract sued upon. A party can recover upon no other contract than the one he sets up in his pleadings. The instruction was not, therefore, applicable to the case made by the pleadings and which was before the court for determination. It was for this reason properly refused.

II. It is urged that the verdict is in conflict with the evidence and defendant’s motion for a new trial based upon that-ground was erroneously overruled. We think the verdict is sufficiently supported. About all that can be said upon this point is that there was conflict in the proof. We cannot even *157say that the verdict was not in accord with the preponderance of the evidence; we cannot therefore disturb it.

No other questions are presented in the case for our determination. The judgment of the Circuit Court is

Affirmed.