Morgan v. Chunn ( 1910 )

Russell, J.

1. In an action brought to recover damages alleged, to have accrued by reason of the defendant’s employment of the plaintiff’s tenant, it was not error to refuse' to strike an amendment to the defendant’s plea, setting up that the defendant did not know that the tenant was under any contract, and further pleading that if the tenant was under contract with the plaintiff there had been a novation of the contract which was originally the basis of the suit.

2. Where special instructions upon the subject of the preponderance of the evidence, as related to the shifting of the burden of proof, are desired, they should be requested. As the charge of the judge in the present case sets forth the general principles applicable to the ease, the failure to give more specific instructions, in the absence of request, does not warrant a reversal.

3. The fact that a contract between a landlord and his tenant is in writing does not preclude one who is sued for disturbing that relation from pleading and proving that there was a novation of the contract set out in the plaintiff’s petition, by reason of which the specific contract, the breach of which is alleged, was abrogated, and by such plea laying the foundation for evidence establishing a fatal variance between the allegations and the proof.

4. The evidence authorized the verdict, and there was no error in refusing a new trial. Judgment affirmed.