Simmons v. Davenport.

Walker, J., after stating the case: We do not see upon what ground the defendant can complain of the instructions of the court. If the plaintiffs were employed by the defendant as attorneys to represent him and take care of his interests, and they rendered services to him under the contract, they were entitled to recover what their services were reasonably worth, there being no stipulation as to the amount the plaintiffs were to receive, and it can make no difference, in this view of the case, whether the third issue was answered *410 or not, there being enough left, if that issue had not been answered, to support the judgment. Sprinkle v. Wellborn, 140 N. C., 163. But we think the jury must have understood the court to charge as to the third issue that the burden was on the plaintiffs to satisfy them by the greater weight of the evidence that the defendant had accepted the benefit of plaintiffs’ services. Besides, there was no serious controversy as to the fact that the defendant had been benefited by what plaintiffs had done. As to the first and second issues, the charge was correct as to the burden of proof and sufficient in other respects to inform the jury as to the quantum of proof required of the plaintiffs to establish the affirmative of those issues, and it was also correct as to the fourth issue. The evidence was so simple that the jury could hardly have been misled by the charge as to the true inquiry involved in each issue. The defendant did not ask for any special instructions, nor did he request the court to amplify its instructions or to present the case in any particular manner to the jury or to charge as to any principle of law he may have thought should be considered by the court and explained. In the absence of any such request, we cannot say that it was reversible error for the court to have charged in the general terms employed by it, especially in a case like this one, which involves so little complication that a jury could not well have misunderstood the legal aspect of the matter. If a party desires fuller or more specific instructions, he must ask for them and not wait until the verdict has gone against him a.nd then, for the first time, complain of the charge. Kendrick v. Dellinger, 117 N. C., 491; McKinnon v. Morrison, 104 N. C., 354; State v. Debnam, 98 N. C., 712; Clark’s Code (3 Ed.), pp. 535 and 536. The decision in State v. Boyle, 104 N. C., 800, upon which the defendant’s counsel relied, has no application to the point now being discussed, namely, that the charge was too general. In State v. Boyle, there was a prayer for special instructions. *411 The case was fully explained and the erroneous impression in regard to it corrected in State v. Pritchett, 106 N. C., 667; State v. Brady, 107 N. C., 822; McCracken v. Smathers, 119 N. C., 620, and especially in Boon v. Murphy, 108 N. C., 187. In subsequent decisions it bas been treated as overruled. State v. Beard, 124 N. C., 813; State v. Edwards, 126 N. C., 1051; State v. Kinsauls, 126 N. C., 1095; Turrentine v. Wellington, 136 N. C., 312. Whatever may be its real status, it has been so frequently disapproved, and so much has been said against it, that it may now be considered no longer of any value as a precedent. The rule which requires that the complaining party should ask for specific instructions if he desires the case to be presented to the jury by the court in any particular view, does not of course dispense with the requirement of the statute that the judge shall state in a plain and correct manner the material portions of the evidence given in the case and explain the law arising thereon. Revisal, section 535; State v. Kale, 124 N. C., 816. But a party cannot ordinarily avail himself of any failure to charge in a particular way, and certainly not of the omission to give any special instruction, unless he has called the attention of the court' to the matter by a proper prayer for instructions. So if a party would have the evidence recapitulated or any phase of the case arising thereon, presented in the charge, a special instruction should be requested. Boon v. Murphy, 108 N. C., 187. In the last cited case the court held, citing State v. Lipsey, 14 N. C., 486, and State v. Haney, 19 N. C., 390, that “the judge is not bound to recapitulate all the evidence to the jury; it is sufficient for him to direct their attention to the principal questions which they have to investigate and to explain the law applicable to the case, and this particularly when he is not called upon by counsel to give a more full charge.” In Boon v. Murphy the respective duties of the judge and counsel under the Act of 1796 (Revisal, section 535,) are clearly and fully defined and it is now commended *412 as a safe guide in practice. That case and State v. Pritchett, 106 N. C., 667, and McCracken v. Smathers, 119 N. C., 620, seem to be directly in point in this case and to dispose of the defendant’s objection to the general terms in which he alleges the charge of the court was couched. There was no error in the trial of the case. No Error.