Rogers v. Wills , 92 Or. 16 ( 1919 )

McBRIDE, C. J.

1. The evidence in this case is exceedingly contradictory and indicates that the witnesses on one side or the other were guilty of wholesale deliberate perjury. The evidence seems very evenly balanced, and under such circumstances we are not disposed to retry the facts here, as suggested by plaintiffs’ counsel.

2-5. There was no error committed by the court in refusing to grant a nonsuit. If, as plaintiffs contend, they expected Wills to comply with his contract, and make and deliver them a deed when his wife had executed it, the fact that based upon such expectations they spoke of the property as their own, would not ratify the action of defendants in secretly making a conveyance and delivering it to Shearer without plaintiff’s knowledge. There was nothing in Shearer’s relation to the case in promoting the exchange, which, of itself, would make him the agent of the plaintiffs authorized to accept the deed in their behalf, and such a delivery, without some further authorization by plaintiffs, would not constitute a delivery to them. In fact, the defendant does not claim in his testimony, nor do his witnesses testify, that the deed was delivered by him to Shearer as plaintiffs’ agent. On the contrary, defendant claims, and his testimony tends to show, that he delivered the deed to Mrs. Rogers herself, which, if true, was a good and complete delivery passing the title, which could not revest in defendant by reason of the fact that Mrs. Rogers immediately surrendered the custody of the conveyance to Shearer.

The action of the court in overruling defendants’ motion for a nonsuit was correct and furnished no ground for setting aside the verdict.

6, 7. The court erred in not giving the first requested instruction quoted in our statement. There was some testimony on the part of plaintiff to the effect that subsequent to the date when Wills claims he delivered the deed to Mrs. Rogers, and to its alleged transfer by her to the possession of Shearer, Mr. Lawrence, acting for plaintiffs, asked to see the deed and that Wills left the room a moment and returned with the deed and handed it to Lawrence. Inasmuch as the deed had never been recorded, a jury of laymen might conclude that even if it had been delivered to Mrs. Rogers, as defendant claimed, and subsequently came back into defendant’s possession before being recorded, the title was still ip defendants. For the same reason the second request quoted above should have been given and the refusal so to instruct was error.

Neither of the points involved here was sufficiently covered by the general instruction, and the refusal to give these requests would have constituted reversible error on appeal had the judgment been allowed to stand.

8, 9. We are of the opinion the court was justified in granting a new trial. The recent amendment to the Constitution, which inhibits the court from passing on the weight of testimony, upon a motion for new trial, imposes upon the trial court the duty of seeing that the law by which the jury shall measure the facts shall be accurately stated, and if, as often happens in the hurry of a trial, a mistake, which might have an influence upon the verdict, has been made, the proper place to correct it and save ultimate needless expense is in the Circuit Court, and the proper method is by granting a new trial.

The order of the Circuit Court is affirmed.

Affirmed.

Bean, Johns and Bennett, JJ., concur.