Gleason v. Stone

Fellows, J. (after stating the facts). If plaintiff, in making the arrangements with defendants, whatever they were, was. acting solely as agent for Steinbrecher, and this, was a question for the jury, then defendants were not prevented from dealing directly with his principal. It was the claim of plaintiff that defendants paid to him $67.50 per month rent because of an agreement with him individually to that effect. It was defendants’ claim that such payments were made pursuant to an agreement with plaintiff’s principal. It was not error for the court to admit, testimony offered by defendants to sustain their claim, they having already given evidence making the question of plaintiff’s agency one for the jury. Defendants’ claim was not for an offset, but that they had paid and tendered the full amount due on their lease and agreement with plaintiff’s principal. The court committed no error in admitting evidence of what this agreement was. ■ It was the claim of plaintiff that he paid the last month’s rent in reliance on defendants’ agreement to [191] pay the full $67.50 rent for that month and that the doctrine of estoppel should protect him in such payment. But defendants’ testimony, as we have already stated, tended to disprove this. The court instructed the jury: “If you find by a preponderance of the evidence that in June, 1916, when the last month’s rent was due, the defendants, one or more of them, promised the plaintiff to pay the rent for that month to him, knowing that he was to pay the amount to the owner, and if you find that, relying upon that promise, plaintiff did pay the amount of $67.50 for defendants as a part of the $125.00 payment to the owners substantially as testified by the plaintiff, then I charge you plaintiff would be entitled to recover. “In that event there would be a sufficient consideration for the promise and defendants, after such payment by plaintiff under such an agreement, would be estopped to deny liability to pay plaintiff the amount so paid by him.” .This instruction as fully protected the right of the plaintiff as the state of the evidence would permit. It is stated in the brief of appellant, that the tender in justice’s court did not include the costs and an interesting discussion follows as to the effect of the tender before suit brought accompanied by a demand for a receipt. But the record does not show very extensively the proceedings in justice’s court, or the amount of the tender; it does show, however, an offer by defendants’ counsel to be sworn on the trial at the circuit on the subject, and a statement by plaintiff’s counsel that he would take his word for it. We are pointed to no request to charge on the subject, or to any place in the record where the attention of the trial court was directed to the question of tender; nor are we able to find it. It is only necessary for us to say that the question is, not before us. There was a sharp conflict in the evidence oh the material questions in the case and the court did not err [192] in refusing to direct a verdict for the plaintiff, or in refusing his motion for a new trial on the ground that the verdict was against the weight of the evidence. We have examined the other errors assigned and find them without merit. The judgment is affirmed. Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.