
    Lyman Reed & another vs. Moses H. Call.
    If, on the trial of a cause, no instruction is given upon a material point to which there is evidence, or if the instruction given may tend to withdraw the attention of the jury therefrom, exception should be taken at the time, and the proper instruction prayed for.
    The plaintiffs brought an action of assumpsit, declaring therein on the common counts for goods sold and delivered, and on an account annexed, to recover of the defendant the price of a quantity of flour. The plaintiffs filed a specification of their claim, in which they demanded of the defendants the sum of $ 126, with interest, being the price of certain flour sold to him, namely, ten barrels delivered on or about the 10th, and eleven barrels delivered on or about the 11th of August, 1847, the same being branded on the barrels with the ship ping-mark R, and being known partly as the “ Wilson ” and partly as the “ Bronson ” flour.
    At the trial before Bigelow, J., in the court of common pleas, it was in evidence on the part of the plaintiff, that early in August, 1847, Hurd, one of the plaintiffs, and the defendant, were together in a store, where the plaintiffs kept flour on storage, standing in front of a large quantity of flour piled together; that Hurd, addressing himself to the storekeeper, said: “ Mr. Call also takes the balance of the Wilson and Bronson flour,” being what was left of a lot put into the store in June, some of which had been previously sold to the defendant ; that the three thereupon counted the flour, as near as they could, and made it “ in the neighborhood ” of twenty barrels; that Hurd then told the storekeeper to separate this flour from the rest; that this was soon after done, and the flour rolled out near the back door of the store, separate from other flour; that while it was there so separated, one of the plaintiff’s clerks came up and counted the flour, and said he would give an order for it to the defendant, and did give him an order accordingly, dated August 6fh, 1847, describing it as twenty barrels, Wilson’s brand, seventeen, and Bronson’s, three ; that the clerk, when he counted the flour, found seventeen barrels of Wilson’s and three of Bronson’s separated from the other flour, and making a lot by itself, all of which bore the shipping-mark R upon it; that this mark was used to designate a whole cargo of flour, and did not denote its quality; that on the 10th of August, 1847, the storekeeper delivered to the defendant’s teamster ten barrels of flour, and on the next day eleven barrels, making twenty-one in all, bearing the shipping-mark R; that at the time of the delivery of the twenty-one barrels, the defendant did not deliver the order to the storekeeper, but that several days afterwards, and after having been asked for it several times by the storekeeper, he gave it to him as an order for flour which he had received; and that the flour delivered on the 10th and 11th of August to the defendant’s teamster was the same flour designated as the “ Wilson ” and “ Bronson ” flour, and which had been separated from other flour in the store, as above stated.
    On the part of the defendant, it was in evidence, that early in June, 1847, he bought of the plaintiffs a lot of flour of the like quantity, and bearing similar marks with that specified in the order of August 6th, as appeared by a bill rendered to him by the plaintiffs, dated July 8th, 1847, in which he was charged with twenty barrels of flour described in the same manner as in the order; and that the lot of twenty-one barrels delivered to him on the 10th and 11th of August was parcel of another lot, for which he had already paid the plaintiffs, and was not the flour described in the order, which the defendant contended he had never .received.
    Upon this evidence, the defendant requested the judge to instruct the jury, in the following terms : “ Where the plaintiff brings an action for goods sold and delivered, which are described in the bill rendered as being of a particular quantity, and by particular marks which identify the goods; and so describes them in his specification, under the common counts for goods sold ; and if the contract of sale is admitted, but the delivery is disputed; he is bound to satisfy the jury, beyond all reasonable doubt, that the goods so described were delivered; and evidence which shows that a different quantity of goods •of the same kind was delivered, but does not identify them by the same marks, will not support the action. This must be so, because the burden of proof is on the plaintiff as to delivery as well as sale.”
    The presiding judge did not instruct the jury, in the precise terms suggested by the defendant, but as follows : “ That the plaintiffs, in their specification of claim, sought to recover of the defendant the price of a certain quantity of flour, which they had set forth and described by certain particular marks and designations; that the burden of proof was on the plaintiffs to satisfy the jury of the sale and delivery of the flour, such as was described and set forth in their specification ; and that if the jury were satisfied, beyond a reasonable doubt, that the plaintiffs sold twenty-one barrels of flour to the defendant, ten barrels of which were delivered on or about the 10th of August, and eleven of which were delivered on or about the 11th of August, 1847, the same bearing upon the barrels the shipping-mark R, and known partly as the “ Wilson ” and partly as the “ Bronson ” flour, their verdict must be for the plaintiffs, otherwise for the defendant; in other words, that the plaintiffs had the burden of proof throughout, and must satisfy the jury that they sold and delivered the flour described and named in their specification of claim, (and not other flour,) to the defendant. If they were not so satisfied; or if they had reasonable doubts whether the flour named in the plaintiff’s specification was delivered on or about the 10th or 11th of August; or if other and different flour than that named in the specification was then delivered; their verdict must be for the defendant.”
    The jury, under these instructions, returned a verdict for the plaintiffs, and the defendant excepted.
    The case was argued in writing at the last March term.
    
      G. T Ckrtis, for the defendant,
    said he did not rely upon the omission, to give the instructions as prayed for, which he admitted were given in Substance ; nor had he taken the exception, because the instructions were not in the form suggested ; but he contended that the jury were instructed in such a manner, that they were led to overlook the evidence which tended to show payment.
    
      W J. Hubbard and F. O. Watts, for the plaintiffs,
    said this objection was not now open to the defendant; he should have moved the judge for instructions upon the point alluded to, before the jury retired to consider of their verdict. Moore v. Ross, 11 N. H. 547; Leach v. Woods, 14 Pick. 461.
   By the Court.

It is admitted, in the argument, that the instructions given by the judge, on the subject of the sale and. delivery of the goods, and their identity with those specified in the bill of particulars, were substantially in conformity with the defendant’s prayer, and were correct in law. It seems to the court, that this disposes of the bill of exceptions. The instruction prayed for, and the instruction given, turned wholly upon the burden of proof, and the necessity laid on the plaintiff to prove the sale, delivery and identity of the specific goods, as marked, numbered, and described.

It is now urged that some directions should have been given on the subject of payment. If there was any evidence of payment relied on and submitted to the jury, it could hardly present a controverted question of law. If the goods had been paid for, this would of course have been a complete defence, but it was a pure question of fact on the evidence. The con elusive answer, however, is, that no direction was asked for on the subject of payment; and if any was given that was erroneous, or if that given could seem, by any implication, to withdraw the attention of the jury from the consideration of payment, it should have been excepted to at the time, and the proper instruction asked for.

jExceptions overruled.  