Burns v. Oliphant

GrivjEN, C. J. 1. instructions: pieadiags^for mentSofpar-' ties’ I. The court’s first instruction is as follows: “Gentlemen of the jury: It has been agreed upon by the parties to this suit that the petition of the plaintiffs and the amendment thereto, and the answers of the defendant and reply thereto, just read, shall form a partof these instructions, and that you shall determine the issues therefrom.” Appellants, without denying the agreement, contend that it was error for the court to omit to state the issues, and cite several cases wherein this court has held that it is not proper for the court to refer the jury to the pleadings for the purpose of ascertaining what the issues are. The difficulty which even judges with their learning and experience often encounter in defining the issues as joined in the pleadings is argument sufficient in support of the rule. It surely would not conduce to a full and fair trial if jurors, inexperienced in such matters, were left to determine the issues from the pleadings. The necessity of the judge defining the issues is too apparent to be questioned, and, however pressing the demands may be upon the time of the court, a plain and concise statement of the issues should always be given to the jury. This case furnishes a striking example of the propriety of the rule. While we are clearly of the opinion that a statement of the issues should not be omitted, we are equally clear in the view that a party, who has by his agreement consented to the omission, should not be heard to complain of it. [459] ___: special innTe^aenceto justify. 3. E-EAL-estate missions*'0111" ■ when earned, [458] II. Appellants’ further contention is that there is no evidence whatever to support the defendant’s [459] allegation of fraud, and hence that the court erred in submitting that issue to the jury, and in not setting aside the verdict and special findings. The following are the special findings submitted at the request of the plaintiffs, with the answers thereto: “(1) Did plaintiffs conspire with J. W. Kleeb, in making said contract before you in evidence, to defraud defendant? Answer. Yes. (2) Was said contract obtained through fraud ? A. Yes.” We have examined the testimony with care, and fail to find anything therein to support these answers. There is nothing in the testimony inconsistent with the utmost good faith upon the part of the plaintiffs towards the defendant. We think every expression in their letters is consistent with the employment alleged, and that the allegations of fraud are without any support whatever In the testimony. The verdict for defendant must have been based upon the conclusion that the fraud alleged was proven. In the absence of fraud, the plaintiffs were entitled to recover upon proof of the contract of employment, as alleged, and that they performed the contract on their part. If they brought the defendant and Kleeb into negotiations which resulted in a written agreement between them, and which either could enforce against the other, that would be a performance of the contract of employment, as alleged. That the plaintiff did, by considerable effort, bring the defendant and Kleeb into negotiations which resulted in the written agreement in evidence, is not questioned. The agreement is clearly such as either the defendant or Kleeb could enforce against the other. If there was a contract of employment as alleged, and the plaintiffs brought the defendant and Kleeb together so that they executed the written contract for the exchange of properties, it was immaterial who was in fault that the written contract was not carried out. We think the court erred in submitting the question of fraud, and that the verdict and special findings of the jury are not sustained by the [460] evidence, and for these reasons the judgment of the district court will be reversed. It is unnecessary that we notice the further assignments of error, as wherein they may be erroneous the errors will not occur on a retrial. Reverseb.