Landis v. Fyles

Carmody, J. This action was brought in the district court of Sargent county to recover on a promissory note for $151.61, dated January 1, 1905, due January 1, 1906, payable to respondent, signed and delivered by appellant. This note was given in part for money loaned in 1902, for a stove and other articles sold by respondent to appellant. It was a renewal of a couple of other notes. The complaint is in the ordinary form to recover on a promissory note. The answer admitted the execution and delivery of the note as alleged; but interposed six counterclaims. The first involves board and lodging furnished plaintiff in March and April, 1902, in the amount of $11.43; the second, board and lodging furnished respondent’s wife in March and April, 1902, in the amount of $22.85; the third, board and lodging furnished respondent’s two minor children in March and April, 1902, in the amount of $22.86; the fourth, barn' room furnished respondent for his cow for five months, ending on May 1, 1903, in the amount of $5; the fifth, services rendered by the wife of appellant in nursing respondent’s minor child two weeks in April and May, 1902, in the amount of $30, and assigned to appellant; the sixth, services rendered by Mrs. J. K. Taylor in keeping and caring for respondent’s minor child Clara for four months, ending on January 12, 1904, in the amount of $40, and assigned to appellant. The case was tried in the district court of Sargent county before Judge Allen and a jury. It was admitted on the trial that plaintiff was entitled to recover the face of the note sued on, and interest, amounting in all to $1-80.78, subject to the counterclaims, amounting in all, with interest, to $174.40, as claimed by the defendant. The jury found a verdict for plaintiff for the sum of $108.95, allowing the defendant on his several counterclaims the sum of $71.83. At the time the transactions involved in this action took place, the appellant and respondent were brothers-in-law, their respective wives being sisters, and were also sisters of Mrs. J. K. Taylor. The three families appear to have been on friendly terms. Later on the wife of respondent died. The evidence in this case shows' that previous to March, 1902, respondent resided on a farm near Fairmdunt in this state. Appellant resided in the village of Milnor, Sargent county. In March, 1902, respondent rented his farm and [589] came to Milnor with his wife and three minor children, a boy, Arthur, aged 14 years, and two girls, Clara and May, aged respectively 7 and 2 years, and stayed with appellant during the time mentioned in the first three counterclaims. While there respondent’s youngest daughter died. On the 15th day of April, 1902, respondent became proprietor of a hotel in Milnor, which he conducted until late in the fall of ¡that year. During the time respondent lived on his farm appellant’s wife visited there, remaining 8 or 9 days, after which respondent took her to the home of her parents, who resided a few miles distant. During the time respondent and his family stayed with appellant in the village of Milnor he furnished some of the provisions for the house. At the time respondent’s cow occupied room in appellant’s barn, as stated in his counterclaim, appellant had no cow, and the milk given by the cow was divided about equally between both families. While respondent was conducting the hotel, appellant’s family and Mrs. Taylor frequently took meals there for which no charge was made. While respondent was keeping the hotel his minor daughter Clara was taken ill and, at his request, appellant’s wife nursed and cared for her for two weeks, as stated in the fifth counterclaim. In September, 1903, respondent’s wife died. His minor daughter, Clara, was then taken by Mrs. Taylor, and by her kept and cared for until January 12, 1904, Appellant contends that respondent at his own Instance obtained the goods or things and services rendered him, as alleged in said counterclaims, the reasonable value thereof, with legal interest computed from the time each item became due to the date of the verdict, being $174.40, which sum is a legal set-off against the note sued on; while respondent contends that the things and services mentioned -in the counterclaims were gratuitously furnished him by appellant, it being conceded that no special contract had been entered into between them, and that no claim had been made on respondent by appellant until just prior to the commencement of this action, which was January 30, 1906. At the proper time appellant requested the court to give nine instructions, the second of which is as follows: “If you find from the evidence, in considering the first counterclaim, that the plaintiff, Mr. Landis, boarded with defendant between March 25, and April 14, 1902, both dates inclusive, as claimed by the defendant, for a period of two weeks and six days, then you will ascertain the reasonable value of such board per week, and upon the amount so found [590] you will figure the interest at the rate of 7 per cent, per annum from and since the 14th day of April, 1902, to the present time, and you will set that down as the amount of the first counterclaim.” The third, fourth, fifth, sixth and seventh requests are in practically the same language, and referred to the other five counterclaims. The court refused to give any of the nine instructions requested. The appellant assigns as error the refusal of the court to give these instructions, or the substance of them. This assignment is not well taken. If the court gave the instructions at all he would have to give them without modification or change, unless modified or changed by consent of appellant. Se section 7021, Rev. Codes, 1905, and cases cited in note thereto. Request No. 1 was, in substance, given to the jury. The other eight requests were all incorrect, in that they all assumed that if appellant, his wife and Mrs. Taylor furnished respondent board and services, as alleged in the counterclaims, he would as a matter of law, be liable for the reasonable value of such board and services, and withdrew from the jury entirely the question as to whether they were rendered gratuitously or for pay. He also assigns as error the failure of the court to instruct that, if the jury found for defendant in any amount on all or any of the counterclaims, they should compute the interest on such amount, or amounts, from maturity thereof until the date of the verdict at the rate of 7 per cent, per annum. No proper request was made for such an instruction. It would have been proper for the court to instruct the jury that appellant was entitled to seven per cent interest on all items in the counterclaims allowed him, and if would undoubtedly have done so if properly requested. If appellant had desired more explicit instructions on the subject, they should have been properly presented to the court in writing with the request that they be given. Carr et al. v. Soo Ry. Co., 16 N. D. 217, 112 N. W. 972. Neither did he, on his motion for a new trial, call the court’s attention to its failure to instruct the jury that appelant should be allowed interest on the counterclaims allowed him. Appellant contends that the evidence is insufficient to justify the verdict. An examination of the record convinces us that he is in error, and that there is ample evidence to sustain such verdict. Other errors, both as to the admission of evidence, and as to instructions given by the court to the jury, are assigned by appellant, but under our view of the case it is unnecessary to consider them. [591] We are fully satisfied that the charge of the court embraced a fair and impartial exposition of the law applicable to the facts in the case, and we are satisfied that no substantial rights of the appellant have been prejudiced, either by the court’s instructions to the jury, or by its refusal to give instructions requested by appellant, or by its ruling on the admission of evidence. The question as to whether appellant was entitled to anything on his counterclaim, and how much, was for the jury. Finding no prejudicial error in the record, the order and judgment appealed from are affirmed. Morgan, C. J., and Fisk and Spalding, JJ., concur.