Johnson v. Sherwood

In this case, which is brought for the recovery of money alleged to be due upon an express contract, plaintiff had a verdict. Thereafter the trial court denied defendant’s motion for a new trial. His appeal is from a judgment, and the only claim made by appellant is that the verdict was not sustained by the evidence.

■On the trial the plaintiff and defendant were at variance as to the making of the contract. The court charged the jury that it was incumbent upon the plaintiff to prove his case — the making of the contract, and its fulfilment on his part — by a preponderance of testimony. If he had done this, the verdict must be in his favor; otherwise, for the defendant. The charge was to, the point and covered the only issue involved, the one over which the parties had-squarely •disagreed when testifying. But counsel now argues that, from plain*10tiff’s testimony, it clearly appears that in the performance of the contract, which, as plaintiff alleges, was to secure the cancellation of another contract made between defendant and another person, a fraud was perpetrated upon the latter by plaintiff, and hence he ought not to recover. We fail to discover from the testimony that fraud was either attempted or perpetrated; but even if this was not the situation, and fraudulent conduct bad appeared, no mention of it was made below. The court was not requested to advise the jury as to the bearing and effect such testimony might have, and no exception to the charge, as made, was taken. The verdict of the jury was justified by the evidence, and it must stand.

Judgment affirmed.