Stoll v. Davis

Bubke, 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 said 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 ain 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submitted to the jury, namely, whether or not the offer of $1 an acre mentioned in defendant’s letter to plaintiff was withdrawn prior to the consummation of the sale.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 [378] for tbe plaintiff. Tbe defendant appeals and assigns two errors predicated upon instructions of tbe trial court. (1) Tbe instructions were given orally by agreement of parties, and two exceptions were filed witbin twenty days after filing thereof. Tbe defendant made no request for instructions, nor did be intimate to' tbe trial court any objections to those given while tbe jury was still in tbe court room. Tbe exceptions are, first, tbe defendant excepts to tbe following instructions given by tbe judge to tbe jury: “Did tbe defendant agree to pay tbe plaintiff $2,560, or a dollar an acre, for selling tbe 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 tbe plaintiff for $2,560 and interest thereon at tbe rate of 1 per cent per annum from the time that tbe deal was completed, from tbe time you find, if you do find, that the plaintiff was entitled to commission.” Which instruction was excepted to for tbe reason, as alleged, that it failed to present to tbe jury tbe necessity of tbe contract being performed by the plaintiff, in that it fails to state that before tbe plaintiff will be entitled to recover, be must first sell the said land according to tbe terms of tbe 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 tbe trial court to simplify for tbe jury as much as possible; lengthy and confusing instructions upon issues not involved tend to confuse rather than enlighten tbe jury. In tbe case at bar, both parties bad testified that tbe plaintiff bad sold tbe land according to tbe contract, and bad furnished a buyer who was satisfactory to tbe defendant. No issue was therefore left thereon for tbe jury. Besides, the appellant has taken a mere excerpt from the charge of tbe judge upon tbe point. Tbe trial court, in bis instructions to tbe jury, went fully and fairly into tbe 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 tbe requisites are to a contract, and what is necessary in order that you may find that there was a contract. It must be free, it must be mutual, it must be communicated by each to tbe other. In determining whether these requisites were present in tbe land contract, you will call to mind tbe testimony in tbe case and determine whether or not they did exist with reference to tbe alleged contract between tbe [379] parties. . . . Now, under tbe law wbicb I have read to you, it becomes necessary for you, gentlemen of tbe jury, to call to mind tbe testimony to wbicb you bare listened, and determine therefrom wbetber or not there was a complete contract between these parties as to tbe payment by tbe defendant to tbe plaintiff of a commission of $2,560. Did tbe minds of tbe two parties meet? Was tbe consent mutual? To put it into a little plainer language, did tbe defendant agree to pay tbe plaintiff $2,560, or a dollar an acre, for selling tbe 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 tbe plaintiff. ... If, on tbe other band, you are satisfied that tbe minds of tbe parties did not meet, . . . then, in that case, your verdict will be in favor of tbe defendant and against tbe plaintiff, and with reference to this matter let me charge you further that tbe plaintiff is bound under tbe law in such a case to make out bis case by preponderance of testimony. . . .” There is much more of tbe judge’s charge relating to this matter wbicb cannot be given in this opinion through lack of space. What we have quoted amply justifies tbe rule adopted by this court that exceptions to small parts of tbe judge’s charge will not be con■sidered alone, but that tbe entire charge must be read together in determining wbetber or not tbe appellant has been prejudiced. (2) Tbe second exception filed was as follows: Defendant excepts to that part of tbe instructions wbicb states tbe law as follows: “For it is for you to say wbetber or not in this case tbe plaintiff has established bis case, or convinced you jurymen by a preponderance of testimony that there was a binding contract entered into between these parties whereby tbe defendant agreed to pay tbe plaintiff $2,560 as commission for tbe sale of tbe land in question. If you are satisfied, as I intimated a moment ago, that the plaintiff has proved to your satisfaction that there was such a contract, then it is your duty under your oath to bring in a verdict in favor of tbe plaintiff for $2,560 and interest, as I have hereinbefore stated.” Wbicb instructions are excepted to for tbe same reasons and on tbe same grounds as those set-out in tbe first exception herein. And in disposing of tbe second exception we have nothing more to say than we have said iq. answer to tbe first exception, as tbe issues are practically tbe same. Tbe extract from tbe judge’s charge correctly states tbe issue before tbe jury, [380] and in the absence of specific objection is full enough. Besides, we cannot assume that it has not been fully covered by the trial court. (3) Upon the argument in this court appellant for the first time calls attention to the question of interest, and insists that the jury should not have been instructed positively to include interest in the verdict, but that it was their privilege to allow interest if they so desired. This objection was not incorporated in the exception to the charge, and was not called to the attention of the trial court when he was asked to pass upon the motion for a new trial, and therefore it will not be considered by us. Supporting the principles that we have followed are Brickwood’s Sackett, Instructions to Juries, vol. 1, § 165; 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; State ex rel. Pepple v. Banik, 21 N. D. 417, 131 N. W. 262; 38 Cyc. 1693. The objections of the appellant being without merit, the judgment of the trial court is affirmed.