Spiridon v. Watson

Headnote

Trial—requests to go to jury—waiver.

Appeal by defendants. from a judgment in favor of plaintiff entered on a direction to the jury to find for the plaintiff.

The case is the same as Pool against the same defendants, argued and decided at this general term (ante, p. 53), excepting that in the present case the plaintiff gave testimony as to his being a bona fide holder for value.

The court at general term said: “The plaintiff gave evidence that Sheridan bought of him a picture for the price of $5,000, and paid for it by transferring the note in

action, and by $1,500 in cash. Whether if the defendants had asked the court to submit to the jury the credibility of the witness giving the evidence, it would have been right to refuse, does not seem to be a question in the case. At the end of the testimony for plaintiff, his counsel moved for a direction in his favor. The defendants’ counsel opposed the motion, and requested to go to the jury upon the ‘ question of delivery, and also upon the p’oint whether or no there was not a further agreement that took the place of the written agreement.’ The court granted plaintiff’s motion, and denied defendants’ request. The effect of the rulings was that if the defendants were deprived of the benefit of a construction of the jury favorable to them, on the only question as to which they asked to go to the jury, yet on the face of the testimony which they did not ask that the jury should consider, the verdict should be for plaintiff. If the counsel had called the attention of the court to the position, that although the plaintiff’s testimony was clear that he had given a consideration, his credibility was for the jury, the court might have submitted the matter to the jury, and as it stands, the demand for the submission of the two questions is a waiver of right as to others.”