30 Ky.L.Rptr. 777
Court of Appeals of Kentucky.
Feb. 12, 1907.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Parrott & Jones against J. T. Gray.
Judgment for plaintiffs. Defendant appeals.

This action was instituted by appellees in the Knox quarterly court against appellant for a balance of $159.80 due them on a lot of sawing which they had done for appellant. Appellant answered, and controverted the allegations of the petition, and filed a counterclaim, in which he claimed that appellees, by excessive slabbing of the logs, by reason of not sawing the lumber in a careful and skillful manner, and by failing to stack the lumber according to contract, had damaged him in the sum of $750. On motion, the case was then removed to the Knox circuit court, after which appellees filed an amended petition, in which they stated that they had entered into a contract with appellant by which appellant was to furnish them sawing to the amount of 500,000 feet; and they were to be paid for the sawing $3 per 1,000 feet; that they had been ready, able, and willing to perform their contract, but appellant had only furnished them the amount of 335,193 feet; that he had willfully and wrongfully discharged them from the work; that they were thereby damaged in the sum of $164.90, the amount of profit that would have made if they had been permitted to complete their contract. They further alleged that they had a contract with appellant, whereby he was to move their mill from one set to another when the amount of timber furnished at a set failed to make as much as 100,000 feet; and that two of the sets failed to make that amount, and they were compelled to move the mill at a cost of $75. This amendment was controverted by appellant. On a trial before a jury, a verdict was returned, and a judgment rendered for the exact amount claimed by appellees in their original petition.

Appellant's grounds for a new trial are as follows: "First, because the amount of recovery was too large, and because of error of the jury in the assessment of the amount of recovery. Second, because the verdict and decision is not sustained by sufficient evidence, and is contrary to law. Third, because the court erred in admitting incompetent evidence offered by plaintiffs, and erred in rejecting competent evidence offered by the defendant." The testimony produced by the parties is very conflicting. There was sufficient evidence to authorize the jury to find a verdict for either party. One of the grounds provided by the Code for a new trial is that the verdict is not sustained by sufficient evidence. But this court will reverse upon that ground only when the verdict is clearly and palpably against the weight of the evidence.

Appellant complains in his brief that the court erred in the instructions to the jury; but, even if the court did err in the instructions, the appellant is not in a position to take advantage thereof, as he made no objections, and took no exceptions to them. A party cannot assail a verdict as contrary to law if it is justified by the instructions given the jury as the law. He must assail the instructions as the author of his calamity. The appellant also failed to assign as grounds for new trial that the court erred in the instructions given the jury; consequently he cannot rely on it for a reversal of the judgment in this court.

For these reasons, the judgment of the lower court is affirmed.

Ky.App. 1907.
99 S.W. 640, 30 Ky.L.Rptr. 777


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