Goodrich v. Gebhard

Headnote

Trial— Waiver— When party loses his right to claim on motion for new trial, that the facts are not sufficient to sustain the verdict—Witness-interest of in recovery may be shown to affect credibility, though the fact that he is interested is admitted.

Appeal from judgment entered on verdict in defendant’s favor.

Action on a note made by defendant to one Chase, indorsed to plaintiff.

The defense was, that the note was given for advertising for one year, payable monthly, that at the expiration of a month the agreement was canceled and the advertisement was withdrawn, and that month paid for.

The Court at General Term, said :—“By the verdict of the jury it is established that it was part of the agreement between the parties when the contract in suit was made, that defendant should have the option to discontinue the advertisement at the end of any month ; that on such discontinuance the amount agreed to be paid should cease, and that defendant exercised his option to discontinue after the first month. No objection to the proof of such verbal agreement was made; no motion was made for judgment at the end of defendant’s case, and there was no exception to the charge of the court, or request to charge which was refused. Under such circumstances, defendant loses his right to insist that the facts were not sufficient to sustain the verdict, and the question cannot be raised on the motion for a new trial (Rich v. Solomon, court of appeals, MSS. Opinion). The appellant insisted on but two exceptions. First, that the verdict was against the weight of evidence; second, that the court erred in admitting evidence of the interest of the witness Chase in the cause of action. As to the first, as before stated, we do not think that the record presents the question, as there was no exception taken at the trial which raises the point; but if it did, an examination of the evidence has satisfied us that the verdict was sustained by the evidence. ... As to the evidence of the interest of Chase in the claim in suit, it is difficult to see on what ground it could have been excluded. A mere admission that he was interested in the recovery would not preclude the evidence of the interest of the witness being shown to affect his credibility. The witness was put on the stand to prove a transfer of the claim from himself to plaintiff, and the questions asked were legitimate cross-examination.”