Stoll v. Davis

• Decision Date: 15 November 1913
• Citation: 144 N.W. 443,26 N.D. 373
• Court: North Dakota Supreme Court

144 N.W. 443

26 N.D. 373

FRED C. STOLL v. J. R. DAVIS

Supreme Court of North Dakota

November 15, 1913

Rehearing denied December 15, 1913.

Appeal from the District Court of Emmons County, Winchester, J.

Affirmed.

Armstrong & Cameron (Newton, Dullan, & Young, of counsel), for appellant.

Every claim of defense must be recognized; and where material evidence, or issues, theories, or defenses are ignored by the court, the instructions are erroneous. Walter A. Wood Mowing & Reaping Mach. Co. v. Bobbst, 56 Mo.App. 427; Fiore v. Ladd, 25 Ore. 423, 36 P. 572.

The case should be submitted to the jury on the theory of both parties. Swope v. Schafer, 9 Ky. L. Rep. 160, 4 S.W 300; State v. Williams, 94 Minn. 319, 102 N.W. 722; Blashfield, Instructions to Juries, § 100.

All phases of the case, under the evidence, should be covered by the charge, in a complete and impartial manner. 11 Enc. Pl. & Pr. 190, 191; 38 Cyc. 1626-1629, and cases cited; First Nat. Bank v. Currie, 44 Mo. 91; Chicago Consol Traction Co. v. Schritter, 222 Ill. 364, 78 N.E. 820; Steele v. Crabtree, 130 Iowa 313, 106 N.W. 753; Logan v. Lake Shore & M. S. R. Co. 148 Mich. 603 112 N.W. 506; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 246, 73 N.E. 373; Craig v. Miller, 133 Ill. 300, 24 N.E. 431; Thompson v. Boden, 81 Ind. 179; Cushman v. Cogswell, 86 Ill. 65; State v. Meshek, 51 Iowa 311, 1 N.W. 685; Gallagher v. Williamson, 23 Cal. 332, 83 Am. Dec. 114; Remy v. Olds, 4 Cal. Unrep. 240, 34 P. 216; Everett v. Richmond & D. R. Co. 121 N.C. 519, 27 S.E. 991; Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S.W. 869; Gilmore v. Courtney, 158 Ill. 440, 41 N.E. 1023; Kearney v. Snodgrass, 10 Ore. 183; McClory v. Lancaster, 44 Ill.App. 214; Ludwig v. Petrie, 32 Ind.App. 553, 70 N.E. 280; Carruthers v. Towne, 86 Iowa 325, 53 N.W. 240; Terry v. Shively, 64 Ind. 112; Burnham v. Stone, 101 Cal. 173, 35 P. 627; Weiss v. Bethlehem Iron Co. 31 C. C. A. 363, 59 U.S. App. 627, 88 F. 30, 5 Am. Neg. Rep. 537; Edgar v. McArn, 22 Ala. 796; Beale v. Hall, 22 Ga. 431; Dignan v. Spurr, 3 Wash. 309, 28 P. 529; Gamble v. Mullin, 74 Iowa 99, 36 N.W. 909; Dikeman v. Arnold, 71 Mich. 656, 40 N.W. 42; Chicago, R. I. & P. R. Co. v. Buckstaff, 65 Neb. 337, 91 N.W. 426.

The trial judge should not omit instructions upon any material point covered by the evidence in the case, however slightly, merely because counsel has not requested same. The charge of the court is for the guidance of the jury. Capital City Brick & Pipe Co. v. Des Moines, 136 Iowa 254, 113 N.W. 835; Chattanooga & D. R. Co. v. Voils, 113 Ga. 361, 38 S.E. 819; York Park Bldg. Asso. v. Barnes, 39 Neb. 834, 58 N.W. 440; Rowell v. Vershire, 62 Vt. 405, 8 L.R.A. 708, 19 A. 990; Buck v. Squiers, 23 Vt. 498; Haigler v. Adams, 5 Ga.App. 637, 63 S.E. 715; Gowdey v. Robbins, 3 A.D. 353, 38 N.Y.S. 280; Low v. Hall, 47 N.Y. 104; Central R. Co. v. Harris, 76 Ga. 501; Garrett v. Gonter, 42 Pa. 143; Hice v. Woodard, 34 N.C. (12 Ired. L.) 293; Boon v. Murphy, 108 N.C. 187, 12 S.E. 1032; State v. Pennell, 56 Iowa 31, 8 N.W. 686; Wilson v. Commercial Union Ins. Co. 15 S.D. 322, 89 N.W. 649.

The theory of each party to the case, under the evidence, should be so covered and presented to the jury by the charge as will enable the jury to recognize it, and to know precisely what they are told to decide. 38 Cyc. 1629; McNulta v. Jenkins, 91 Ill.App. 309; Pardridge v. Cutler, 168 Ill. 513, 48 N.E. 125; Linn v. Massillon Bridge Co. 78 Mo.App. 118.

Charles S. Lane and Sutherland & Payne, for respondent.

There must be a foundation laid for assignment of error by proper and timely exceptions, or same cannot be reviewed. Hedderich v. Hedderich, 18 N.D. 488, 123 N.W. 276; Pease v. Magill, 17 N.D. 166, 115 N.W. 260; Paulsen v. Modern Woodmen, 21 N.D. 235, 130 N.W. 231.

Points must be saved by clear and explicit exceptions. Galloway v. McLean, 2 Dak. 372, 9 N.W. 98; Kennedy v. Falde, 4 Dak. 326, 29 N.W. 667; State v. Campbell, 7 N.D. 58, 72 N.W. 935.

Where a party considers the instructions of the court incomplete, or where they fail, in his opinion, to cover any material point, it is his duty to call the court's attention to same, and request further instructions. Landis v. Fyles, 18 N.D. 587, 120 N.W. 566; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N.D. 217, 112 N.W. 972; 38 Cyc. 1693; Garrigan v. Kennedy, 19 S.D. 11, 117 Am. St. Rep. 927, 101 N.W. 1081, 8 Ann. Cas. 1125; Belknap v. Belknap, 20 S.D. 482, 107 N.W. 692; Connell v. Canton, 24 S.D. 572, 124 N.W. 839; Lunschen v. Ullom, 25 S.D. 454, 127 N.W. 463; 38 Cyc. 1693.

It is the duty of counsel to call the court's attention to any material omission or oversight in its charge to the jury. "If he is silent when he should speak, he ought not to be heard when he should be silent." McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685; Boon v. Murphy, 108 N.C. 187, 12 S.E. 1032.

OPINION

BURKE, J.

During the year 1909 plaintiff was engaged as a real estate agent in Wisconsin and South Dakota. At the same time defendant was the owner of a tract of land containing 2,560 acres situated in Emmons county, North Dakota. During that year the defendant circulated a poster offering the sad tract for sale at $ 15 per acre, and also wrote to the plaintiff inclosing a circular and containing the following language: "Am now offering it for sale on the ten year or crop payment plan, as per circular inclosed, for good reasons as set forth in my circular. I am anxious to sell, and with that end in view would be willing to consider a limited amount of wild land or even a small farm that would not tie me down too much, on the deal, and as an inducement am willing to pay a commission of $ 1 per acre to the party who first closes a satisfactory deal." After some further correspondence the plaintiff produced a purchaser named Green, who finally bought the Emmons county tract, paying therefor partly in an Illinois farm. So far the facts are not in dispute, but regarding the negotiations that led up to the sale there is a sharp dispute. The defendant testified that while the negotiations were under way, and when it seemed that the trade would fall through on account of disagreement between principals as to the price of the Illinois land, that plaintiff and defendant agreed that if the deal should be made on the terms proposed at that time by the man Green that plaintiff should not receive any commission from the defendant whatever. The plaintiff, however, denies such conversation and insists that he is entitled to $ 1 an acre because he furnished a purchaser who bought the land on terms satisfactory to the defendant. It was thus apparent that, at the close of the trial, there was but one issue of fact to be submitted to the jury, namely, whether or not the offer of $ 1 an acre mentioned in defendant's letter to plaintiff was withdrawn prior to the consummation of the sale. Upon this question the trial court instructed the jury in the language set forth later in the opinion, and the jury found for the plaintiff. The defendant appeals and assigns two errors predicated upon instructions of the trial court.

(1) The instructions were given orally by agreement of parties, and two exceptions were filed within twenty days after filing thereof. The defendant made no request for instructions, nor did he intimate to the trial court any objections to those given while the jury was still in the court room. The exceptions are, first, the defendant excepts to the following instructions given by the judge to the jury: "Did the defendant agree to pay the plaintiff $ 2,560, or a dollar an acre, for selling the land in question? If you are satisfied that there was such an agreement made, then it is your duty to bring in a verdict in favor of the plaintiff for $ 2,560 and interest thereon at the rate of 7 per cent per annum from the time that the deal was completed, from the time you find if you do find, that the plaintiff was entitled to commission." Which instruction was excepted to for the reason, as alleged, that it failed to present to the jury the necessity of the contract being performed by the plaintiff, in that it fails to state that before the plaintiff will be entitled to recover, he must first sell the said land according to the terms of the said contract. In disposing of this exception we deem it proper to say that, even if given alone, this instruction was proper and commendable. It is the duty of the trial court to simplify for the jury as much as possible; lengthy and confusing instructions upon issues not involved tend to confuse rather than enlighten the jury. In the case at bar, both parties had testified that the plaintiff had sold the land according to the contract, and had furnished a buyer who was satisfactory to the defendant. No issue was therefore left thereon for the jury. Besides, the appellant has taken a mere excerpt from the charge of the judge upon the point. The trial court, in his instructions to the jury, went fully and fairly into the question of contracts in general and in this particular case, and says: "In determining whether there was a contract between these two parties, you will bear in mind what the requisites are to a contract, and what is necessary in order that you may find that there was a...