Nutter v. Black

• Decision Date: 09 June 1928
• Docket Number: 28,141
• Parties: JAMES NUTTER, Appellee, v. CARL BLACK, Appellant
• Court: Kansas Supreme Court

267 P. 961

126 Kan. 331

JAMES NUTTER, Appellee, v. CARL BLACK, Appellant

No. 28,141

Supreme Court of Kansas

June 9, 1928

Decided January, 1928

Appeal from Allen district court; FRANK R. FORREST, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Terms of Agreement--Instructions. Upon the issues formed and the evidence in the case where a plaintiff sued to recover for services rendered to defendant under a contract the terms of which were the only matters in dispute, the giving of an instruction to the jury that if the jury found the contract to be as claimed by plaintiff he would be entitled to recover a certain sum, and if the contract was found to be as claimed by defendant, a verdict in his favor should be given, was not material error.

2. APPEAL AND ERROR--Review of Evidence--Necessity for Presentation on Motion for New Trial. A ruling excluding evidence is not reviewable when the evidence was not presented to the trial court by affidavit or otherwise at the hearing of the motion for a new trial.

S. A. Gard, Oscar Foust, Kenneth H. Foust and John W. Brown, all of Iola, for the appellant.

F. J. Oyler, of Iola, for the appellee.

OPINION

JOHNSTON, C. J.:

James Nutter sued Carl Black before a justice of the peace to recover $ 149 alleged to be due for work done and performed upon defendant's farm under an oral contract. The justice of the peace gave judgment for the plaintiff, and defendant appealed to the district court, where a trial was had with a jury, which resulted in a verdict and judgment in favor of plaintiff in which he was awarded $ 149. Defendant again appeals.

The principal point urged as error was the giving of an instruction. After stating the contentions of the parties respecting the contract under which the work was performed, the court stated:

"Gentlemen of the Jury: This is a simple case and ought to be easy for you to decide and do so quickly. The only contention in this case is the question, Was there a contract as claimed by the plaintiff? and if you so find, then you should return a verdict for the plaintiff for the amount sued for, to wit, $ 149. On the other hand, if you find that the contention of the defendant is correct, and that there was no such contract as claimed by the plaintiff, but one such as was described by the defendant, then your verdict should be for the defendant."

It is argued that the court was not warranted in charging the jury that if the contract was as claimed by plaintiff they should find for the full amount claimed, or otherwise to return a verdict for the defendant. There was little testimony in the case other than on the question as to the terms of the contract. Plaintiff's testimony was to the effect that the agreement was made about September 1, 1926, to the effect that he and his wife should go out on the farm and he would be paid $ 1 a day for the time he was on the farm. Defendant was a single man, and a part of the agreement was that plaintiff's wife was to cook meals for all, do the housework and care for the butter and eggs for her board. The defendant's claim was that plaintiff was to take charge of and work on the farm on a fifty-fifty basis, that is, that he would get one-half of all that was produced on the farm after the following March first. He further said that he agreed to pay plaintiff for husking corn, and that the payment which had been made to him was for the husking of the last year's crop and not upon the $ 1 a day basis, as claimed by plaintiff. There was no dispute as to the time he went out on the...