Elliott v. Maves ( 1915 )

Mr. Presiding Justice Higbee

delivered the opinion of the court.

4. Instructions, § 46^*—when instruction does not invade province of jury. An instruction that the jury “may” find for a party to an action under certain conditions does not make it mandatory on the jury so to find under such conditions. 5. Instructions, § 162^*—when modification by insertion of word “may” instead of “should” erroneous. In an action to recover a broker’s commission for procuring the exchange of property, where instructions requested by defendant, to the effect that under certain conditions the jury “should” find in his favor, were modified by the court by substituting the word "may” for the word "should,” instructions held correct as requested, the words “should” and “may” not having the same meaning as used in the instructions requested. 6. Words and phrases—“should” and “may.” In some connections the words “should” and “may” have substantially the same meaning. 7. Appeal and error, § 1565^*—when modification of instruction by substituting word “may” for “should” not prejudicial error. In an action to recover a broker’s commission for procuring a contract to be made whereby defendant traded his store building and stock. of goods for a tract of land, where instructions requested by defendant that the jury “should” find in his favor under certain named conditions were modified by the court by substituting the word “may” for the word “should” as used in the requested instructions, held that the modification was not reversible error, although erroneous as not making it mandatory on the jury to find if they found the conditions named to exist, it appearing that the case was not close on the facts, and that the jury were not misled by the error. 8. Appeal and error, § 1538^*—when instruction omitting essential element not prejudicially erroneous. In an action to recover a broker’s commission for procuring the exchange of property, an instructions state the necessity of such a contract to entitle plain-would be entitled to a verdict, although erroneous as omitting the element of whether there was a contract for commissions between plaintiff and defendant, is not prejudicially erroneous where other instructions state the necessity of such a contract to entitle plaintiff to recover, and where the case is tried on the theory that such contract was essential to recovery.