Bybee v. Kinote

oí t >e peace, where i upon appeal to the Bybee sued Kinote before aius-judgment went for the de endant, a circuit court, judgment having gone again for the defendant, he appeals to this court. The mb-tunee of the te^ti-timony is preserved in the bill of exceptions, and the only question to this court relates to the proper exercise of the discretion of the Circuit Court in re'U.dng to grant the plaintiff a new trial. All the witnet-e: on behalf of the concur that, about the month of September 1837, By bee and Kinote were employ ed together in building a mill, and Bybee, in the pre-enoe of the witness, recite--’ a contract which he had made with Kinote for the sale of his interest m the mill, the amount of which was, that Kinote was pay him one thousand dollars and all expenses, except own hands and a certain Carlisle who was employed about the work, and that the hands which Byhee had engaged at the mill was him elf, two sons, and an old negro man. Joseph Raker, a witness on the part of the defendant, states the contract preci - ely as the other witnesses, but adds that he understood by the expression of all the expenses that it was the expenses accruing about the mill since they had entered into partnership, and was not to include any expenses that had accrued before. The subject matter of the present suit was the contof some timbers, which had been procured by said Bybee from said Baker previously to the time when Kinote & BvuSe had become partners in the erection of the mill. On this evidence, the jury found a ver-*54diet for defendant, and the court refused to grant the plaintiff a new trial, excluding the inference of Mr. Raker, which was no testimony. There was nothing before the jury, which could justify them in limiting the responsibility of Kinote to such expenses as had accrued about erecting the mill subsequent to a specified time. All the witnesses, including Raker, concur that there was no such limitation, and the langnage of the contract proved, taken in its ordinary acceptation, would admit of no such construction, but would embrace all the expenses which had accrued in erecting the mill, except the labor of Bybee and his hands. If Raker had within his knowledge any facts or circumstances, which led him to the conclusion he stated to the jury, he should hare been made to state those facts; the jury might then have drawn the same inference which he did. There seems to be nothing in the evidence as preserved in the bill of exceptions to j ustify the verdict of the jury. Judgment is reversed, and the cause remanded.