Smith v. Shelton ( 1923 )

Smith, C. J.,

delivered the opinion of the court.

The judgment of the court below herein was affirmed a.t a former day, and counsel for the appellant suggests that we erred in so doing. The appellant sued the appellees for commissions claimed to be due him by the appellees under a contract by which the appellees agreed to pay him a commission of five per cent, in event he should sell certain real property for him for the sum of four thousand five hundred dollars.

The evidence for the appellant, in the language of the brief of his counsel, is to the effect:

“That he was standing across the street in front of the property where Eugene Shelton and Sallie Morgan lived; that Sallie Morgan called him, inquiring if he sold property; that he was a rental agent, and that she said she would like for him to sell her property for her; that she described the property to, him, size, etc.; that she told him her price was four thousand five hundred dollars; that he told her he would charge five per cent, commission for the sale, if a salé was made; that she agreed to this; that, he asked her if she would take less; that she said she might, but that he should take it up with her.”

The appellee Sallie Morgan, on whose testimony the defense of the appellees rests, testified as follows:

“The defendant, Sallie Morgan, colored, testified that she had lived in Vicksburg between thirty-five and thirty-seven years. That she knew Mr. Smith; that she saw him daily passing the streets. That in last June she did not know Mr. J. E. Smith. That he faces, her, and says, 'You have this property for sale? What are you asking for it?’ I said, 'Mr. Smith has'the property’ (meaning Mr. W. F. Smith, another real estate agent). He said, 'He' is offering it for four thousand dollars/ and that he had a party who would like to get it. That she did not say any more to him. That before Mr. W. P. Smith’s time was out Mr. J. E. Smith came across the street to collect some rent. That he saw me sitting on the front porch. That he came across the street to me, and says, ‘Has Mr. Smith got a signed up contract with you for that property?’ I said, ‘Yes.’ He said, ‘After his time is out I think I have a party who will buy it.’ I said ‘Yes.’ That she did not say any more to him about the place. That she said to herself that ‘after Mr. Smith’s time is out I will take the place off the market.’ That she did.not see appellant, J. E. Smith, any more until the 30th of November, 1919. That she did not lay her eyes on him until Sunday, November 30th. That she say him passing, but not to talk to him. That one day Mr. Smith, the appellant, came out there. That she thought he was the other Mr. Smith. That he had come out about selling the place. That he said that he would bring a man out to look at the house. That she did not have-any idea that it was J. E. Smith, the appellant, until he came to her door on Sunday. That he said, ‘I brought the man to look at the house.’ That she said that she did not know where he got his authority. That she did not know what caused him to come. That she was almost crying. That her husband had not been dead long. That she said, ‘Come in.’ That he came in. That they went around and through the house and in the yard and all around, and that when they got ready to leave Mr. Smith asked her something about if she would take less for the house. That she said, ‘I have decided not to sell the place.’' That she told him that this other Mr. Smith had an option on it already. That she said to Mr. Arcaro when he first came to the door that ‘she had decided not to sell.’ That she did not know who sent him here, and what caused him to come here. That she was worried and did not give him a thought about asking him. That she ought to have asked him who sent him there. That the place was not offered for sale. That she did not know from what source he had come. That she did not ask him any questions. That on Monday she found out why he came there. That on Monday morning he came hack to the store. That he (Mr. Smith, the appellant) said that Mr. Arcaro had offered everything. That she thereupon told him that she did not want to sell the place. That he had not been gone over ten minutes when he came back and told her the place was sold. That she told him that they did not want to sell the place) and that he repeated to her that it was sold. That he (Mr. Smith) said give him the deeds and let him have them written up, and that she told him that she did not have but a life interest in the property. That it went to Eugene, and that she could not sell without his consent.”

There was a verdict and judgment for the appellees.

Three rulings of the court are assigned for error by counsel for the appellant, but only two of which are urged in their brief. These two assignments bring into review the granting by the court below of the following instructions given to the jury at the request of the appellees:

“The court instructs the jury that, before plaintiff is entitled to recover in this case, he must prove by a preponderance of the evidence every material allegation of his declaration, and must prove by a preponderance of the evidence that defendant employed him to sell their said property; otherwise the jury must find for the defendants.”

“The court instructs the jury that, unless they believe from the evidence that fe'allie Morgan and Eugene Shelton employed the plaintiff to sell their property on Clay street, and that they fully understood that they had employed him to sell said property, then the jury should find for the defendants.”

The objection to the first of these instructions is that it required appellant to prove “every material allegation of his declaration.” The objection to the second question is that the jury is required thereby before returning a verdict for the appellant to believe not only that the appellees employed him to sell their property, but also “that they (the appellees) fully understood that they had employed him to sell their property.” We will assume for the sake of the argument that the instructions are erroneous in these particulars. Nevertheless, on the evidence, the errors were harmless, and do not justify a reversal of the judgment of the court below.-

As set forth in the brief of counsel for the appellant:

“All of the facts in this case are uncontroverted with the exception of the single and sole question as to whether appellees had employed appellant to sell their property.”

And this question was clearly and succinctly given to the jury by the appellant’s first instruction and by the first clause of the appellees’ instruction. Southern Railway v. Ganong, 99 Miss. 540, 55 So. 355. There was no contention on the part of either the appellant or the appellees that either misunderstood the language which the other used in the discussions between them on which this case is predicated. The contention of the appellees, with which the jury agree, was simply that neither they nor the appellant used the language on which the appellant’s claim is based.

In order for an erroneous instruction to require the reversal of a judgment it must affirmatively appear from the record that the complaining party was prejudiced thereby, or, in the language of this court’s rule No. 11 (101 Miss. 906, 59 So. ix), it must affirmatively appear from the whole record that such judgment has resulted in a miscarriage of justice. Jones v. State, 104 Miss. 871, 61 So. 979, L. R. A. 1918B, 388.

Suggestion of error overruled.