Wallace v. Strickler

Hart, J., (after stating the facts). Counsel for the defendant urge upon us that the judgment should be reversed because the court refused certain instructions asked by them, but, as insisted by counsel for plaintiff, they are in no attitude to complain of this for the reason that they have not seen fit to abstract the instructions given by the court. In such case the presumption is that the court correctly instructed the jury,, and that all of defendant’s instructions which should have been given were covered by those given. Carpenter v. Hammer, 75 Ark. 347; Files v. Law, 88 Ark. 449; St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 374. The court also refused to give instruction No'4 as asked by the defendant, but gave it over the objection of the defendant in the modified form as follows, towit: “You are instructed that if you believe from the evidence that the plaintiff was to sell the land on or before the 12th day of May, 1909, and he failed to do so, then he can not recover from the defendant in this action.” By the court orally: “In connection with the foregoing instruction, I give you further instruction. If you find from the evidence that Strickler undertook to sell this land, and had procured a purchaser for the land at the price named, and the purchaser agreed to take the land at the price fixed within the time agreed upon, it was immaterial as to when the deed was executed or the money paid, although not completed by Strickler. If Mr. Wallace completed the sale afterwards on the same terms that Mr. Strickler procured it, if would have been a ratification of the trade of Strickler, and he would have a right to receive his part of the commission.” In such cases the rule is, “since the appellant has not abstracted the other instructions that were given on behalf of appellee and those that were given on his own behalf, we must assume that the instructions given, in the particulars of which appellant. complains, were cured by others, unless the instructions as given were so radically defective that they could not be corrected by others.” Dobbins v. Little Rock Ry & Elec. Co., 79 Ark. 85; Bourland v. McKnight, 79 Ark. 427; Jacks v. Reeves, 78 Ark. 428. Defendant’s contention was that Poston and the plaintiff, under the terms of the contract with him, must have made the sale and received the purchase money before the 12th day of May, 1909, in order to be entitled to commissions. His theory of the case was entirely ignored by the court in the above instruction. In the case of St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564, the court reviewed our previous decisions on the question of conflicting instructions, and said: “It has been decided by this court in an unbroken line of cases thát an instruction which ignores a material issue in the case about which the evidence is conflicting, and allows the jury to find á verdict without considering that issue, is misleading and prejudicial, even though another instruction which correctly presents that issue is found in other parts of the charge. Where the instructions are thus conflicting, it is impossible for an appellate ■court to tell which of them the jury followed, and such an error ■calls for a reversal. Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.” It is manifest that, the instruction as given, having entirely ignored defendant’s theory of the case, could not have been cured by any other instruction which the court might have given. Therefore, for the error in giving the fourth instruction as - indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial.