Cunningham v. Springer

Citations

• 13 N.M. 259
• 82 P. 232

Syllabus

<p>SYLLABUS.</p> <p>1 APPEAL — VERDICT—CONCLUSIVENESS—NATURE OF QUESTIONS INVOLVED.</p> <p>Where the questions at issue were whether a patrol contract provided that plaintiff should receive a reasonable compensation or a definite amount for certain legal services, and, if the latter, whether the contract was afterward- modified, and, if not, whether plaintiff had been paid in full, the verdict of the jury for defendants was a determination of these issues, which was conclusive on appeal.</p> <p>2. SAME — RECORD— INSTRUCTIONS— MODIFICATION —FAILURE TO SEND TO JURY ROOM.</p> <p>After giving the charge, the court modified one of the paragraphs by striking out certain words and inserting others in a carbon copy of the instructions. The paragraph as modified was read to the jury. As to subsequent proceedings, the record recited that the amendment to the instruction was also taken down by the stenographer, transcribed from his notes of the proceedings, “and attached to the original charge on file after the verdict had been returned.” Held, that it did not appear from the record that the modified instruction was not taken to the jury room.</p> <p>3.' NEW TRIAL — FAILURE TO OBJECT.</p> <p>Under Code, Sec. 128 (Comp. Laws, 1897, Sec. 2685), providing that all instructions shall be carried by the jury to their room, failure to send the instructions to the jury room is not cause for a new trial, where there is no objection to such failure.</p> <p>4 CONTRACTS — ACTION—BURDEN OF PROOF.</p> <p>Where, in an action in contract, defendants pleaded a general denial and payment, the burden of proof was on plaintiffs to prove the contract alleged.</p> <p>5. SAME — PLEADING—GENERAL DENIAL — PAYMENT.</p> <p>In an action in contract, payment may he proven under the general issue.</p> <p>6. TRIAL — DUPLICATE—INSTRUCTIONS.</p> <p>Refusal of a requested instruction is not error, where its substance has already been given.</p> <p>7 SAME — CREDIBILITY OF WITNESSES.</p> <p>Where the testimony o