Johnson v. Harvey

Babtol, C. J., delivered the opinion of the Court. The appellant, who was defendant below, claims a reversal of the judgment because of the alleged error of the Superior Court in refusing his second prayer. By his first and third prayers, which were granted, the jury were instructed that the plaintiffs were not entitled to recover for the articles manufactured by them, if the same were not made in a good and workmanlike manner, according to the contract, samples and directions, unless they were accepted by the defendant, and in that event they were not entitled to recover the contract price, but only so much as the articles were reasonably worth. The proof was that the materials used in the manufacture were furnished in part by the plaintiffs, and in. part by the defendant; and the object of the second prayer was to obtain an instruction to the jury to the effect that the mere retention of the manufactured articles by the defendant was no evidence of acceptance; if the jury should find that in the process of manufacture the materials of the defendant were blended with the work, labor and materials of the plaintiffs. ²⁶¹ There is no doubt of the right of a party to segregate any portion of the evidence, and to ask the Court for an instruction as to its legal force and effect as bearing upon any material question in issue.

Whiteford vs. Burckmyer, &c., 1 Gill, 143 ; see also 6 G. & J., 157, 169 ; 4 Md., 262, 269 ; 6 Md., 11 , 19. Such was the object of the second prayer, and if it were free from objection in other respects, its refusal could not be justified merely because it was limited in its scope, and specifically directed to a single item of evidence. We think, however, looking at the facts of the