Opinion
September Term, 1865
Everett P. Wheeler, for the respondent.
On examining the printed case, we find no cause for reversal. In support of the verdict and judgment, the complaint must be deemed amended in conformity with the facts proved. There was no error to the prejudice of the defendant in the interlocutory rulings, during the progress of the trial. The jury were authorized to find, from the evidence, that the plaintiff consented only to the removal of the wall below the third story of the building. They were also at liberty to find that the consent was coupled with the proviso, that the wall should not be removed, until the goods in the store were protected from damage and exposure by an adequate inner partition. The appellant relied on the alleged consent to defeat a recovery. The judge was right in refusing to charge in accordance with his request. If the consent was provisional, or if it was limited to the removal of the wall of the two lower stories, it was not a bar to the action. No exceptions were taken to the charge, as delivered by the judge to the jury.
The judgment should be affirmed.
All the judges concurring, except WRIGHT, J., who was absent,
Judgment affirmed.