Martin v. Dyer

The first assignment urges that the court erred in giving in charge to the jury paragraph 6 of its charge. Under that assignment, two propositions are submitted; the one asserting that it is error to submit to the jury an issue not raised by the pleadings and evidence, and the other asserting that the evidence tendered by the plaintiff being that the contract was for 5 per cent. on the amount for which the land sold, less indebtedness due the state, and the defendant tendered evidence tending to show that it was only 2 1/2 per cent., less the indebtedness due on the land and stock, it was the duty of the court to confine the jury to a consideration of these issues and no others. The jury itemized their verdict, and allowed appellee the following amounts: On land, $882.54, on horses, $58.50, on cattle, $342, on sheep, $158.65, making a total of $1,441.69. An analysis of the undisputed evidence demonstrates the fact that the jury did not allow the plaintiff a commission of 5 per cent. on the land, but allowed him 2 1/2 per cent. on the agreed price of the land, after deducting the amount of purchase money appellant was owing therefor. Therefore, if error could be pointed out in the sixth paragraph of the charge, it would now be harmless; it being manifest that the jury did not find for the plaintiff under that paragraph. However, we perceive no affirmative error in the paragraph referred to, nor in any other portions of the charge.

Under other assignments similar objections are urged to the ninth, tenth, and eleventh paragraphs of the charge, all of which are regarded as untenable, and are overruled.

Appellant requested, and the court refused to give, a special charge instructing the jury that the burden of proof was not upon the defendant to prove that the contract was as contended by him, but rested upon the plaintiff to prove that the contract was such as he alleged in his petition, and that, if the plaintiff had failed to prove the case as alleged, the jury should find in accordance with the defendant's contention, and the refusal of that instruction is assigned as error. We overrule that assignment for two reasons: First, the court's charge on the burden of proof was sufficient; and, second, the verdict, considered in connection with the undisputed testimony, demonstrates the fact that the jury did not allow a commission of 5 per cent. upon the sale of the land, as claimed by the plaintiff, but adopted the defendant's contention as to the rate of the commission. It is true the jury did not deduct from the price of the land all of the defendant's indebtedness, which he testified was the agreement between him and the plaintiff, but they did deduct the amount of his indebtedness for the land. They had the right to accept the defendant's testimony as to the rate of commission, and to reject his testimony as to the amount that was to be deducted from the price of the land; and it appears that they did this, and it would have been error for the court to have instructed them that, if they rejected the plaintiff's testimony as to the rate of commission, they must in applying the 2% per cent. rate deduct all the defendant's indebtedness, including that upon live stock, as well as on the land. Such a charge would have constituted a comment upon the weight of testimony, and would have invaded the exclusive province of the jury.

The jury tendered to the court a verdict which read as follows: "We, the jury, find for the plaintiff 2 1/2 per cent. on all the land, less the amount due the state and 2 1/2 per cent. on horses, 5 cents per head on sheep, 25 cents per head on all cattle. We also agree that R. D. Dyer have interest on amount at 10 per cent. from October 1, 1911, also defendant pay cost of suit. Foreman, E. A. G. Broad." The court refused to accept the verdict in that form, and gave the jury the following instruction, omitting formal parts: "You are instructed that you will state in your verdict, in addition to what *Page 1053 on the sheep, the amount on the cattle, the amount on the land as you may find the same, no question of interest was submitted to you, and you will not find on the question of interest. In stating the amount of commission on each item, state it separately." The jury then retired, and afterwards returned the verdict, which was accepted and made the basis of the judgment, and which reads as follows: "We, the jury, find for plaintiff, commission on land, $882.54; commission on horses, $58.50; commission on cattle, $342; commission on sheep, $158.65. E. A. G. Broad, Foreman." The giving of the charge last quoted is assigned as error; the contention being that it was upon the weight of testimony, and deprived the defendant of the right to have the jury further consider the case upon the merits. We hold that no error was committed in giving this charge. The first verdict shows clearly that the jury had decided the case upon its merits in favor of the plaintiff, but it was defective because it did not state the several amounts allowed, and it was proper for the court to require the jury to supply that omission. Upon the subject of interest the charge complained of was in appellant's favor, and resulted in a verdict which did not allow the plaintiff to recover anything as interest.

There are some assignments relating to rulings made upon the admissibility of testimony; but, without discussing them in detail, we hold that they fail to point out reversible error.

We also overrule the assignment which complains of the action of the court in not sustaining a special exception to the plaintiff's petition. The last three assignments complain of the third, fourth, and fifth paragraphs of the court's charge; the proposition submitted under each assignment being: "It is error for the court to charge on an issue not raised by the evidence." We overrule these assignments, because the statement of facts does not support the proposition urged.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.