Hight v. Klingensmith , 75 Ark. 218 ( 1905 )

Wood, J.,

(after stating the facts.) Appellant contends that his theory of the case was not submitted to the jury, and that there was no evidence to justify the court in modifying appellant’s instructions, and in submitting to the jury the question whether or not appellant accepted plans of appellee knowing that they called for houses the construction of which would cost more than $5,000. Appellant also insists here that the court erred in using the term “accepted’ in the instructions, without explaining its legal meaning and effect, inasmuch as appellant did not deny that the plans were received by him through the mails, and had never been returned to appellee.

We are of the opinion that these contentions of appellant are not well taken. There was evidence to justify the court in submitting to the jury the question as to whether or not the appellant, notwithstanding the fact that he had told the appellee that he did not want to expend more than $4,000 on the house on College Avenue, and notwithstanding the fact that he did not want to expend exceeding $5,000 in all, nevertheless consented at last for appellee to draw plans for the construction of buildings that would cost considerably more than that sum, and also as to whether or not he accepted such plans after they were made, knowing that they called for the construction of buildings to cost far in excess of $5,000.

We are of the opinion that the testimony, which we have set out fully in the statement, warranted an instruction such as the court gave, and justified the modifications to the prayers of appellant to which he objected. We do not think the term “accepted,” as used in the instructions, in view of the issues joined in the pleadings and the testimony of the parties to support their respective contentions, could have been misleading. Moreover, appellant did not ask the court for any explanation of the term to meet the views which he here insists upon, and he is therefore not in a position to complain of the trial court for not ruling in. accord with his views. Had he asked for such explanation of the term as he here insists upon, doubtless the court would have granted his request. ' For the term “accepted,” as used, was intended evidently in no other sense than that contended for here by appellant, and could not fairly, under the circumstances,-have been construed otherwise. The “real issue,” as appellant’s counsel aptly remarks, “was whether the defendant had received plans knowing that they called for the expenditure *of nearly twice the sum of money which appellant said, at first, he was walling to expend.

Appellant also contends that it was error for the court to add, as one of the modifying clauses to its request number I, this language, “unless you further find that Hight directed or knowingly permitted Klingensmith to proceed to draw the plans, in accordánce with the wishes and desires of his (Hight’s) wife and daughter.” ^* The appellant himself testified: “I wanted a house that would please my family. My family talked over the general outline of the house they wanted. When Klingensmith was showing the plans to my wife and daughter, I did not look over them. I listened to their talk, and in that way got an idea. * * * I think my wife and daughter were satisfied with the plans.” Appellee swears that he informed appellant that to build a house such as his wife and daughter wished would cost $8,000, and proposed to change the plans, without expense to appellant, in order to reduce the cost of the building. At this juncture the witness says the appellant’s wife and daughter, who were present, objected to any change, and that appellant instructed him to go on and draw the plans. It was to meet this phase of the evidence that the modification was made, and it was proper.

The declarations of appellant’s wife in his presence at the time the terms of the contract were being considered and entered upon, coupled with his acquiescence in her'wishes so expressed, were admissible. Allison v. Barrow, 91 Am. Dec. 291; Whiting v. Barney, 30 N. Y. 330; Hammons v. State, 73 Ark. 495.

Upon the whole case, we are of the opinion that it was for the jury to determine just what was the contract between appellant and appellee, and that the question was submitted fully and fairly. There was evidence sufficient here to support the verdict

The judgment is therefore affirmed.

* NOTE.—Defendant requested the court to instruct the jury as follows:

“1. I charge you that when the defendant Hight employed the plaintiff to draw the plans and specifications for the said buildings, and agreed to pay him therefor.-he had a right to direct the plaintiff to draw the same so as to keep within the limits of $5,000 as the cost of said buildings; and it was the duty of plaintiff, when he undertook to do so, to observe and respect the wishes of the defendant, and to draw said plans and specifications so as to keep within the limits directed by the defendant, as to the cost of paid buildings, unless you find that defendant consented to a greater cost.”

The court refused to give such instruction as requested, but modified it by adding to it the following words and sentences:

"Or after said plans were completed Hight accepted same. Or, after being informed by Klingensmith that the building would cost $S,000, if you find that he was so informed by Klingensmith, directed plaintiff to go on and complete the plans, or unless you further find that Hight directed or knowingly permitted Klingensmith to proceed to draw the plans in accordance with the wishes and desires of his (Eight’s) wife and daughter.”