McClane v. Thomas

1 Or. 288

• Court: Oregon Supreme Court
• Decided: July 15, 1860
• Status: Published

Opinion

"Wait, C. J.

The question to be determined by this court is, did the court below commit error in refusing to instruct the jury, that, “ under the pleadings in this action, it must appear satisfactorily that the defendant demanded a conveyance of the lots, or the plea of want of consideration does not apply?”

No other ruling of the court was excepted to; and the several other matters, not of record, embraced in the motion for a new trial, having been decided in the court below, will not be re-heard here. The issues submitted to the jury were, did the plaintiff abandon his claim, and was the note without consideration ?

A demand, by the defendant, of a conveyance of the lots, would not be necessary or material in the determination of these issues.

The jury, in finding a verdict for the defendant, necessarily found one or both of these issues in the defendant’s favor. If the note was without consideration, no demand of a conveyance would be necessary; and if the plaintiff had abandoned his claim, and had thereby placed it out of his power to convey the lots, no demand of conveyance would be necessary. "We find no error for which the judgment of the court below ought to be reversed.

Judgment below affirmed.