The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-05-14

Judges w. n. Miller. l.. j. Williams
and c, W. Lynch The syltbl nre as
follows.
Hinton Milling Co. vs.. New River
Milling Co., Summers county; re-.
NefSed: new trial; Mason, Judge.
i. If error or supposed error OF
any sort. except errors In the plead
ings appearing on the record, are
committed by 4 court during the trial
OF a case by Il jury. the appellate
court will not review su Ch rulings,
unless they were objected TO and eN-
ceptcd to when made, and new trial
was asked for and refused by the
trial court, and the rulings excepted
TO noted on the record and made 4
part OF it.
.. a motion to set asi de the YER
diet of jury and grant Il new trial
which does not state the grounds
upon which II is based, is not so de-
fectiye as TO deprive the person maxi
ing the motion of the rights 10 avail
himself OF such errors as he could
have had the benefit of had they been
stated in the motion, provided the
errors complained OF appear on tho
face OF the record or are shown by
special bills of exception or by bills
of exceptions certifying all the evil
dence and the rulings Of the court
in relation to the Introduction or
rejection of evidence on the trial, and
that these errors are pointed out in
the appellate court.
3. Where bill of exceptions GER
tilies all the evidence and shows in
addition thereto the rulings OF the
trial court in admitting or refusing
to admit evidence upon the trial and
the exceptions thereto taken at the
time. this court will consider such
exceptions without special bills OF ex-
ceptions thereto. provided the par
ticular questions are specified dis
tinctly in the record on the motion
for new trial, or in an assignment
OF error, or brief of counsel in this
court, so that this court may readily
and safely find the particular ques-
lions or evidence TO which the cXcep-
lions relate, but this court will not
consider such exceptions without
such specification, althou Oh the bill
of exceptions certifying the evidence
notes them.
A. The purpose of a bill OF excep-
lions is to exhibit on the record the
supposed mistakes of the trial court
which do not appear on the record
and could not otherwise be brought
before an appellate court for review
and correction II erroneous.
5. Where an action OF assumpsit
is brought to recover damages for
breach Of written lease of mill
and machinery therein, the property
10 be used by the lessee as mill and
machinery therein, the property to
he used by the lessee as mill and
the lease contains no covenants. and
there are no allegations In the de-
claration charging the defendant
with damages on account of the de-
iective conditions OF the leased
premises when the lease became eff
fectlve, and instruction should not
be given on motion of the plaintiff.
that, THE court instructs the jury
that If they believe from the evil
dence that the Hinton Milling Com
pany was conducting general mill
ing business of which the defendant
had knowledge and executed the
lease with the knowledge that the
machinery was In defective and
improper condition of repair by gen.
eral wear and tear, and did not re-
pair the same and the plaintiff was
thereby occasioned loss, then the
defendant would be liable for tho
damages resulting to plaintiff"
G. The defendant leased to the
plaintiff its mill property and ma
chlnery for the term Of five years
and placed the plaintiff in possession.
The lease contained covenant re-
Quirlng the lessor to repair ANY
breaks not the result Of negligence
or unskilled operation" In an &C
ton by the plaintiff against the de-
PENDANT for damages for the breach
of said contract, the defendant can
not reduce plaintiffs dem and by way
of recoupment for damages and in
jury OF the unskillful and inferior
character of the operation Of the mill.
Whereby the permanent custom of the
mill was destroyed and the custom
ers permanently driven off," The
admission of evidence by the court
at the instance of the defendant
against the objection of the plaintiff,
to establish such recoupment, is re-
versihle error.
Lydia a. ihrig VS.. W. +. Ihrig, ct