Myers v. Willmeroth
| Decision Date | 27 October 1949 |
| Docket Number | 32654. |
| Citation | 39 N.W.2d 423,151 Neb. 712 |
| Parties | MYERS v. WILLMEROTH. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In an action of forcible detainer, plea of not guilty puts in issue all facts necessary to entitle plaintiff to a judgment for restitution of the premises.
2. The refusal to give a requested instruction is not error if the subject thereof is substantially and correctly included in the charge of the court to the jury.
3. The meaning of an instruction, not the phraseology, is the important consideration, and a claim of prejudice will not be sustained when the meaning of the instruction is reasonably clear.
4. When different instructions are given on the same subject they should be considered together, and if they fairly submit the case, it will not be reversed for indefiniteness or ambiguity in one of the instructions.
5. In determining whether or not there was error in a sentence or clause of an instruction, it will be considered with the instruction of which it is a part and the other instructions and the true meaning thereof will be determined not from the sentence or phrase alone but by a consideration of all that is said on the subject.
6. The court should eliminate all matters not in dispute and submit to the jury only the controverted questions of fact upon which the verdict must depend.
J. E. Willits, Hastings, for appellant.
James E. Addie, Hastings, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL WENKE, and BOSLAUGH, JJ.
This is an action for the forcible detention of a residence property brought by the appellee on the claim that the appellant was holding over his term because of the failure to pay rental therefor when due. Appellant interposed the defense of not guilty. The trial resulted in a verdict and judgment for appellee. The record shows that appellee was the owner of the property; that appellant was a tenant thereof from month to month by an oral lease for a rental of $10 a month, an installment of which was due on February 15, 1947; that demand was then made for it; that no rental was paid on that date; and that appellant was served with a proper notice to quit.
The issue was whether or not the appellant was in default of payment of his rent to the appellee on February 15, 1947. The plea of not guilty by appellant put in issue all the facts necessary to entitle appellee to have restitution of the property. Myers v. Willmeroth, 150 Neb. 416, 34 N.W.2d 756. Appellee was required to establish by a preponderance of the evidence that appellant had defaulted in the payment of the rental.
The rental was to be paid in cash, by the performance of work, or the furnishing of supplies. Appellant claims that he performed work and furnished commodities of a value in excess of the amount of the rent. This is denied by appellee. The evidence was in conflict, and the determination of the fact was for the jury.
Appellant claims error in the failure of the court to give to the jury instruction No. 1 requested by him. It stated that before the appellant could be found guilty, the burden of proof was on the appellee to prove by a preponderance of the evidence that $10 rent was due from appellant on February 15, 1947, and was unpaid either by work performed, supplies furnished, or cash paid by him to appellee, and if a preponderance of the evidence failed to show that the rent was unpaid by any of the methods mentioned, or if the evidence in reference thereto was evenly balanced, the verdict of the jury should be for the appellant. An instruction given by the court fully and correctly advised the jury as to all of the matters included in the tendered instruction. It told the jury that the verdict must be not guilty unless it was satisfied by the greater weight of the evidence that on February 15, 1947, the total unpaid balance owing by appellant to the appellee was greater than the total indebtedness of appellee to appellant for services rendered and articles furnished; that the jury should compute the total amount of rent which accrued during the time appellant occupied the house, and deduct therefrom all cash payments made thereon, and the balance would be the unpaid rent referred to in the instruction; that it should determine the value of all work done and supplies furnished by appellant to appellee; that the unpaid rent as determined by the jury should be compared with the total amount it found due from appellee to appellant for services and supplies, and if the unpaid rent was greater than the amount found due for the services and supplies, then the verdict should be for appellee; but if the jury found the unpaid rent was less than the indebtedness of appellee to appellant, or if it found the respective amounts were equal, or if the evidence in reference thereto was evenly balanced, then the verdict of the jury should be not...
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