Action for a balance due upon account. The defendant answered admitting most of the items of plaintiff’s account, but claiming further credits by way of set-off, amounting to more than the sum claimed by plaintiff. The reply was a general denial of defendant’s items of set-off, and also a plea of the statute of limitations.
Decided 1877-04-20
Bothrock, J.
¶1I. The. defendant introduced the chattel mortgage in evidence, as showing an acknowledgment of indebtedness in the sum of $.65.
¶2*611 practice-instruction.*60The plaintiff introduced evidence tending to show that the *61mortgage in question was made at a time when the decedent been sued for a large amount of money, and tpat tjie chattel mortgage was made to defendant in trust, and that defendant had no promissory note of sixty-five dollars as described in the mortgage.
¶3The court instructed the jury, in substance, that if the mortgage was given for the purpose of covering up the property of decedent and defrauding his creditors there was no consideration therefor, and that it could not be enforced against plaintiff.
¶4The defendant exceptéd to this instruction because no issue of fraud was made in the pleadings.
¶5No objection was made to the evidence showing the circumstances under which the mortgage was made. Objection was first made when the instruction was given to the jury. This was too late.
¶62 _. against evidenee. . II. It is urged that the verdict is not supported by the evidence. We cannot disturb it on this ground. It is true there are certain items of the cross-claim which seems f° us, from the evidence, it would have been proper for the jury to have allowed, but the deceased and defendant were brothers, the account sued upon was made by the deceased with his own hand, and while upon his death bed, and a very short time before he died he manifested to the defendant an anxiety that the account between them should be settled. The plaintiff, who is the widow of John Collins, testified that the defendant never pretended to have any claim against the estate until the account was sued; that she could never get anything out of him about it, but that he “ would kind of act deaf, and walk off.”
¶7Considering all the evidence, we are not prepared to say that the verdict is so manifestly without support as to indicate passion or prejudice upon the part of the jury.
