Richardson v. Hoyt

Beck, J. I. The original petition seeks to recover under an express contract, whereby plaintiff was employed by de [69] fendant to sell lands, and alleges that the usual and reasonable “value of plaintiff's services is $300.” The evidence as to plaintiff’s employment was conflicting, and there was testimony tending to prove that plaintiff did render the services with the knowledge and consent of defendant. II. The Circuit Court gave to the jury the following instructions : “3. It is a rule of law that no person can accept without objection the services of another without being liable to pay its reasonable value, and I can see no good reason why such rule of law should not be applied to this case.” “5. If the defendant did not want to pay the plaintiff the reasonable value of his services in finding a purchaser for his farm, he should have told him so in unmistakable language before he did anything in that direction, and then he would have been released from all legal liability therefor.” i. insxrucpiled contract or services. III. The third holds that the acceptance of plaintiff’s services by defendant, would render him liable, and directs the jury to apply this rule to this case. The jury would surely infer that the court regarded defendant liable under the rule. They should have been instructed .£ £oun(j (jefen(3an{; accepted the services, he is liable. No other instruction so directs. The instruction is clearly misleading and, therefore, erroneous. 2. ---;---‘ IY. The fifth instruction was also misleading, in that the jury must have understood therefrom that the court held the defendant' liable upon the facts proved, unless the jury should find that defendant told plaintiff “in unmistakable language” that he “did not want to pay the ■plaintiff the reasonable value of his services.” It surely cannot be the law that defendant would be liable under all circumstances for the services of the plaintiff, unless defendant-had informed plaintiff that he “did not want to pay the reasonable value of his services;” yet the language of the instruction is to that effect, being without qualification. [70] 3 mwTTm burlen oí proof. [69] Y. The defendant requested the court to instruct the jury [70] “that the burden of proof is on the plaintiff to prove the contract upon which he seeks to recover, * * and if the same is not proven, they should find for' defendant.” This instruction should have been given. The case seems to have been tried upon the theory that defendant was liable under an implied contract arising from acceptance by defendant of plaintiff’s services. After verdict, plaintiff amended his petition, stating bis cause of action in tbat form. An implied contract, as well as an expressed contract, should be established by proof, to authorize recovery thereon, and the burden of the proof rests upon the plaintiff. - 4 practice courl’fabcontroverted, VI. Counsel for defendant 'Complain of the first and second instructions given to the jury. An amended abstract, which is not denied, alleges that no exceptions were taken to these instructions. We have often held that an amended abstract, unless denied, will be regarded as truly presenting the contents of the record. We must regard the instructions as not having been excepted to in the court below. We cannot, therefore, review them. For the error* pointed out, the judgment of the Circuit Court is Reversed.