Hurst v. Williams

• Decision Date: 19 June 1907
• Parties: HURST v. WILLIAMS.
• Court: Kentucky Court of Appeals

102 S.W. 1176

HURST v. WILLIAMS.

Court of Appeals of Kentucky.

June 19, 1907

Appeal from Circuit Court, Wolfe County.

"Not to be officially reported."

Action by Lena Williams against Wm. L. Hurst. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wm. L Hurst and Gourley & Redwine, for appellant.

Beckner & Beckner and Floyd Byrd, for appellee.

LASSING J.

The appellee, Lena Williams, brought suit in the Wolfe circuit court against the appellant, W. L. Hurst, seeking to recover a sum of money from appellant for services rendered by her as real estate agent in procuring a purchaser for certain timber owned by appellant. A trial resulted in a verdict in favor of appellee, and, because of alleged errors occurring during the progress of the trial, W. L. Hurst appeals.

Many errors are assigned; but the principal grounds relied upon by appellant for reversal are: First, that he was entitled to a peremptory instruction, because the proof offered by appellee wholly failed to support the contract sued on. Second because the court erred in admitting evidence of an offer of compromise or adjustment between the parties. Third, because the jury was not properly instructed. Fourth, because of misconduct of appellee's counsel in the closing argument to the jury.

Appellee alleges that in the early part of April, 1903, while engaged in the business of buying and selling real estate, standing timber, etc., she entered into an agreement with appellant by the terms of which she was to procure a purchaser for the sale of the timber upon a certain tract of land, and that for her services in so doing she was to have all that she could realize out of the sale of said timber over and above $50,000. Appellant admits entering into this contract, but alleges that it was limited in time to two weeks, or, at least, to a reasonable time. That appellee did introduce to him a prospective buyer, but that he was unable to make a sale, either through his own or the efforts of appellee, to said buyer, and that the matter, as between them, was upon such failure dropped, and the contract closed. This was some ten days or two weeks after the contract had been entered into. That in the fall of the same year, in the latter part of August or the early part of September, timber having materially advanced in price, this same person returned to him, made an offer on a part of the timber on said land, and he sold it to him. That in this transaction appellee had no part or interest whatever, and had nothing to do with effecting the sale. Appellee testifies that her first effort to effect said sale did not meet with success, and that in August she went to appellant and renewed the contract upon the same terms as originally agreed upon. This he denies. It is insisted for appellant that, if all that appellee says is true, she must fail in this suit, because she has elected to sue upon a contract made in April, and she cannot support this suit by proof of one made and entered into in August. It is elementary that to support a judgment the pleadings must be supported by proof, and it is equally as important that the proof offered should be supported by proper pleading. The one is as important to the successful prosecution of a lawsuit as is the other. Appellee based her suit upon a contract entered into in April, 1903. The proof shows and was directed towards supporting and upholding a contract, similar in terms to the April contract, which she says was made in August, 1903. Upon this showing the trial court should have either directed the jury to find for the defendant, or else permitted an amendment to be filed making the pleading conform to the proof. As this case must be reversed upon other grounds, the court will, upon its return, permit such an amendment, if offered, to be filed.

It is charged and the proof shows that appellee was permitted to testify that appellant came to her shortly after this sale was effected and offered to give her $500. This was clearly an offer of compromise. Whether it be termed a present or gift is wholly immaterial, as it was an effort on the part of appellant to buy his peace and avoid having any litigation with appellee. This he might do without recognizing any right on her part to compensation for any services supposed to have been rendered in effecting the sale in question. In the case of L. & N. R. R. Co. v. Montgomery, 14 Ky. Law Rep. 622, this court said: "Testimony as to the effort to settle the case, made between plaintiff and defendant's attorney, was incompetent and prejudicial." To the same effect is Kelly v. Combs, 57 S.W. 476, 22 Ky. Law Rep. 365, and Tyler & Apperson v. Hamilton, 55 S.W. 920, 108 Ky. 120. In the case of Evans v. Smith, 5 T. B. Mon. 364, 17 Am. Dec. 74, this court said: "Offers of sums, prices, or payments made during an attempt to compromise, if not accepted, are not obligatory upon the party making them, and cannot be given in evidence against him, as proving his liability, or fixing its amount, because he may make what offers he pleases for the purpose of buying his peace, without being prejudiced thereby." As to just what effect the evidence of this offer on the part of appellant to settle the matter in dispute between himself and appellee, by paying her $500, had upon the jury, it is impossible to say. They may have regarded it, and doubtless did, as an admission on his part that he had a binding contract with appellee regarding the sale of this timber; but, without speculating as to what effect it had, it is sufficient to say that this testimony was clearly incompetent, and, being such, it was error on the part of the trial court to let it go to the jury.

Appellant also complains of the instructions. We are of opinion that the instructions, as given, are objectionable. Instruction No. 1 was erroneous, in that it did not properly present to the jury the issue as raised by the pleadings and the evidence, in this, that the jury should have been required before they could find for the plaintiff, to believe from the evidence that she sold said timber, or procured a purchaser therefor, during the life of the contract sued on. If they believed from the evidence that there was a time limit to said contract, then the sale must have been made within the time limit; if they did not...