The opinion
Follett, Ch. J.—(dissenting).
The court instructed the jury: “ If you'believe that the order to sell was given on the 8th or 9th of November, as she and her husband testified, then they are entitled to take it at the price at that date and to allow what the stock was sold for, if it was actually sold in good faith for 5f; if not sold at 5f and in good faith, hut from the evidence here you can find that it could not have been sold after they gave the order to sell it in the same day, as counsel claimed, then they would be entitled to the credit of $875.”
Among other exceptions taken to the charge is the following : “ I except to the proposition that unless the order for the purchase of the Robinson stock was given on the 9th, they are to be credited with the price of the actual sale; that is, in reference to the price they are to be credited on the sale, that they are to be credited with the price of the *105 actual sale only under the circumstances stated by your honor.”
I quite agree that there is no issue raised by the pleadings or by the evidence as to the good faith of the defendants in making the purchase and sale; but I do not think the exception quoted sufficiently called the attention of the learned trial judge to the question now raised so as to make it available in this court. Had the remark quoted impressed the learned counsel for defendants with the idea that the court intended to impute bad faith to his clients, or to submit the question of their good faith to the jury, the attention of the judge would have been called to the observation and to the fact that no such issue was raised by the pleadings or evidence.
I am unable to concur in the conclusion that this remark misled the jury, or that the exception sufficiently called the attention of the trial court to the error now complained of.
I think the judgment should be affirmed, with costs.
Judgment reversed and new trial granted unless plaintiff stipulates to deduct from the judgment $1,187.50 with interest from August 22, 1882, and in that event the judgment be so reduced and as so modified affirmed, without costs.
All concur, except Follett, Ch. J., who reads dissenting opinion.