White v. Merrill

Fox, J. Action for damages for breach of contract.

Defense, general issue, statute of limitations, and payment of all indebtedness. Verdict and judgment for defendants, motion for new trial made and granted, and appeal from the order granting said motion.

It is unnecessary, on this appeal, to make a detailed statement of the case as shown either by the pleadings or the evidence, the only question being whether the court committed an error in granting the motion for new trial which calls for reversal of its order.

The opinion of the court, given upon determining the motion for new trial, was brought up in the transcript. On the hearing, respondent moved to strike this opinion out, as it constitutes no part of the record on appeal, and the motion was granted. The court below may give an opinion, oral or in writing, upon any motion or question that arises in the course of proceedings before it, or upon the final determination of a cause; but such opinion constitutes no part of the record on appeal. No matter what reason the court below may assign for its action, this court is not bound by such reason. If this court finds that upon any ground or for any reason the action of the court below was correct, such action will be [16]affirmed, regardless of the reason which the court may-have given for it. Counsel may cite it in argument, as they may any other opinion given at nisi, and it may sometimes aid .the court in a solution of the question upon or to which it is cited; but it is not an act upon which error can be assigned. For this reason — possibly for others also — the legislature, in adopting the code, has omitted it from the list of papers required to be brought up on appeal.

It is claimed upon argument that the court granted the motion for new trial because of an error in the charge to the jury, and that it was mistaken in holding that the charge was erroneous, and therefore the motion ought not to have been granted. In its charge to the jury, the court referred to certain evidence which had been given on the trial (and which is claimed to have been given without objection), and in very plain terms authorized the jury to consider whether the plaintiff had ratified certain acts of the defendants which were relied upon as acts constituting a breach of the contract. The court held that this was error, because the question of ratification was not within the issues of the cause. We think the court was right in so holding. The only issues were: 1. Whether or not there was such a contract as alleged; 2. Payment of all indebtedness under the contract; and 3. Whether plaintiff’s claim was barred by the statute of limitations. The evidence referred to was admissible as tending to prove whether or not there was such a contract. Being in, it was entitled to be considered for all purposes within the issues of the cause (if admitted without limitation as to purpose); but it was not entitled to be considered in connection with any question not involved in the issues.