dissenting.
I think that the charge of the court, which is set out in full in the record and report of the case, presented the issues in this case fairly and fully to the jury ; that the evidence was conflicting, and the jury has passed upon it, and there is enough to support the verdict.
Lawshe had such an interest in the land that Irby could not sell it so as to destroy that interest without an equivalent or arrangement with Lawshe, and when he had an opportunity to sell himself, it was his duty to arrange with Lawshe to do so. Whether the interest which Lawshe had be called an interest with power to sell, or by any other name, is wholly immaterial. It'was valuable to Lawshe and he had worked under it, and Irby could not deprive him of it except by his consent. That consent was necessary to enable Irby to sell himself, and therefore was a valuable consideration to support the supplemental verbal contract which allowed Irby to sell for a consideration,. to-wit, the payment of a certain per cent, to Lawshe. Whether or not there was such a verbal contract, ann whether or not it was confined1 to the sixty days of L'awshe’s right to sell, or extended indefinitely, were questions for the jury, and were, in my opinion, given fairly and legally to the jury in the charge.
*223If the time was not extended, and Irby, after telling Lawshe that he had opportunity to sell, and inducing him to believe that he would sell within the sixty days, omitted to do so, with intent thereby to deceive Lawshe, putting off the consummation of the trade until after sixty days, to deprive Lawshe of his per cent, agreed upon, such conduct would operate as a fraud upon Lawshe, and he would still be entitled to the per cent., the sale being made to the man to whom Irby had told Lawshe he could sell when he made the supplemental verbal contract. Such is the effect of the charge in the motion for new trial, construed in connection with the context set out in the charge in full, and, so construed, I fail to see error in it.
Taken altogether, the charge seems to me to be a clear and complete presentation of the issues to the jury in language suited to their comprehension, and as free from error as the proper presentation of such a case could reasonably be made.
The credibility of the witnesses and the weight of the evidence are matters for the jury; which they are more competent to pass upon from their acquaintance with the parties and witnesses, and their appearance and mode of testifying, than I am, and when the only other tribunal with which the law invests the power to pass upon the evidence in review, to-wit, the judge who presided at the trial, and who also saw the witnesses and their manner of testifying, is also satisfied with the verdict, it seems to me that the verdict ought to stand. Therefore I dissent from the judgment of reversal.