Powers v. Bridges
Opinion
Opinion by
This was an action of assumpsit, brought in the court below by the plaintiff in error, for an alleged violation of a contract to convey a tract of land. The defendant pleaded the general issue to the several counts in plaintiff’s declaration, and trial was had thereon on the 20th day of October, 1843. On the 6th day of November, same year and term of the court, affidavits were filed for a new trial, judgment having been rendered on the verdict of the jury in favor of the plaintiff.
On the 10th of the same month, the motion of defendant for a new trial was overruled. Afterwards, on the 22d day of the [245]*245same month and term, the defendant submitted another affidavit for a new trial, and also another affidavit on the 27th of the same month; and on the same day last aforesaid, the court granted a now trial on the last application. To these proceedings of the court the plaintiff excepted, and has assigned the same for error.
It seems to be settled that the subject of a new trial directs itself to the sound discretion of the court, and that the opinion of the court ought not to be disturbed, unless a flagrant case of injustice is made to appear by the record,
It will not be necessary in this case to settle the question raised here, whether error will lie' to the decision of a court sustaining or overruling a motion for a new trial, under the statute prescribing the jurisdiction of this court.
The granting of a new trial on the 27th November was clearly erroneous and irregular^ The defendant had had his day in court on a motion for a new trial; his motion and affidavits had been overruled, and it would be flagrantly unjust to permit a defendant to file a second motion for a new trial over one month after trial and judgment rendered, and sustain the same, as was done in this case.
If such practice should be tolerated, %, party plaintiff would never know at what hour his judgment would be set aside, nor at what period litigation would be at an end.
But the plaintiff in this case, after the new trial was granted, asked and obtained leave to amend his declaration, and did so amend by adding an entire new count to Ms declaration, to which the defendant pleaded the general issue.
The plaintiff clearly waived all errors and irregularities in the prior proceeding, conferring jurisdiction upon the court by his amendment and subsequent acts, and acquiescing in the irregular acts of the court in making the prior judgment of the court a nullity.
The plaintiff contends that the proceedings of the court, in setting aside the judgment, were coram non judice and void. [246]*246However this might be, had the plaintiff not amended his declaration, yet, inasmuch as the court had jurisdiction of the subject matter, and the plaintiff by his acts abandoned the judgment, it is too late for the plaintiff to question the jurisdiction of the court in rendering a judgment on the second issue. The irregular proceedings of the court, we think, were voidable only, and cured by plaintiff’s subsequent acts.
We will now proceed to examine the errors assigned to the proceedings in the last trial. It appears from the bill of exceptions, that the plaintiff requested the court to instruct the jury as follows : “ That if the jury find that plaintiff made a demand of the deed of defendant, and defendant promised to execute the same and deliver it at a particular place and to a person designated by the parties; and receive the note on R. W. Bell at such jjlace from such j>erson, when plaintiff was to have the note to be delivered to defendant; that if the jury believe that plaintiff did deliver the note to the person agreed upon, and at the place agreed upon, and defendant failed to deliver the deed at such place, that such failure of defendant rendered the defendant liable to this action; which instruction the court refused. To which plaintiff excepts.”
The instruction sought seems to have been pertinent to the issue and responsive to the averments in the declaration. We see no reason on the record for refusing it.
It is urged that the bill of exceptions does not set out the evidence so as to show the pertinency of the instruction. This we think was not necessary; a principle of law was affirmed in the instruction, and the court was called upon to give the same to the jury. The principle of law alluded to in the instruction did boar directly upon the issue, Where the opinion of the court delivered to the jury presents a general principle of law, and the application of the evidence to it is left to the jury, there is no necessity of putting any portion of the evidence upon the record. Pennock v. Dialogue, 2 Pet. Rep. 15.
It was not necessary for the plaintiff to prepare a deed for execution, and tender the same to the defendant, before he [247]*247could sue for a breach of the contract to convey,
It is true in England, for reasons, we presume, peculiar to their system of conveyancing, that it is required of a vendee to prepare and tender a deed; and such is the doctrine in many of the states of this union. But we believe the more reasonable doctrine to be as above stated. See Buckmaster v. Grundy, 1 Scam. 313; 9 Wend. 68.
For the above reason, the judgment of the court below will be reversed.
Judgment reversed.
See Warren v. The State, ante 106.
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