J. C. Engleman, Inc. v. Briscoe ( 1927 )

Hart, C. J.,

(after stating facts). The defendant, J. C. Engleman, Inc., is a corporation organized under the laws of the State of Delaware, and the defendant, J. C. Engleman, Jr., is a nonresident of the State of Arkansas. They filed a motion to quash the service of summons against them and to dismiss the attachment levied on their property, and saved their exceptions to the action of the court in overruling their motion. Subsequently J. C. Engleman, Jr., president and manager of J. C. Engleman, Inc., filed a motion to continue the case for the term on the ground that he was physically disabled to attend court and was confined in a hospital in Temple, Texas, and would necessarily be confined in the hospital for an indefinite period, and that it was necessary for him to be present at the trial of the case, both for the purpose of advising his attorneys and testifying as a witness in the case. The case was continued for the term on his motion. When the case was tried, he was the principal witness for both defendants.

The object of the service of summons upon a party to a lawsuit is to apprise him of the nature of the proceedings against him. When a party applies for or agrees to a continuance of the case, this makes him a party to the record, and any defect that might exist as to service of process upon him is waived. Rogers v. Conway, 4 Ark. 70; St. L. I. M. & S. Ry. Co. v. Barnes, 35 Ark. 95; and Sager v. Jung & Sons Co., 143 Ark. 503, 220 S. W. 801. Therefore we hold that the assignment of error of the defendants, that the judgment should be reversed because there was a personal judgment against them in favor of the plaintiff, is not well taken.

It is next contended by counsel for the defendants that there was no consideration for the oral contract sued on. This court has held that parties to a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement therefor. The change in the terms of the contract is a sufficient consideration for the execution of the new contract. Of course, the burden of proof is upon the party relying upon the new contract to prove its terms. Cook v. Cave, 163 Ark. 407, 260 S. W. 49.

In Moore v. Exelby, 170 Ark. 908, 281 S. W. 671, it was held that it is not necessary that authority to sell and make a binding contract for the sale of lands be in writing, for a contract employing an agent to find a purchaser is not within the statute of frauds; and several earlier cases are cited in support of the ruling.

In the application of these principles of law to the facts at issue in the present case, it will be seen that the plaintiff was entitled to recover, if the jury believed his testimony. According to his evidence, the oral contract was made in substitution of a previous written contract. The parties agreed to be bound by the terms of the oral contract. The plaintiff was to receive seven and one-half per cent, commission on the amount of all sales of land made by him or' by his subag’ents for the defendants. According to the evidence adduced in his favor, sales to the amount of over $30,000 were made by the plaintiff and his subagents. At seven and a half per cent, commission, this would be more than $2,000, the amount for which the jury returned a verdict in his favor and for which judgment was rendered in his favor against the defendants.

Numerous assignments of error in the refusal of the court to give instructions asked by the defendants are urged for a reversal of the judgment. We do not deem it necessary to set out these instructions or to review them. The object of instructing the jury by trial courts is to state and apply the law to the facts of a particular case. The court, by its instructions, should concretely apply to the facts the principles of la.w applicable thereto as shown by the issues raised in the pleadings. When the instructions sufficiently set forth the claims of the respective parties in such concrete form as to give the-jury a proper understanding of the issues raised by the pleadings, a repetition of the instructions is not necessary, and may serve to confuse and mislead the .jury. It is proper to refuse instructions embodying principles of law substantially covered by other instructions given, which fully and fairly submit to the jury in a concrete form the respective theories of the parties to the lawsuit. The reason is that, if the court should repeat in varying form the principles of law applying to a particular state of facts, the instructions might be considered by the jury as an argument by the court and as an indirect expression of the court upon the weight to be given to the evidence, which is prohibited under our Constitution. Redman v. Hudson, 124 Ark. 26, 186 S. W. 312, and North American Union v. Oliphint, 141 Ark. 346, 217 S. W. 1.

In the case at bar the issues were plain and simple. The court told the jury that the burden of proof was upon the plaintiff to show by a preponderance of the evidence that he furnished buyers that actually bought and paid for the lands of J. C. Engleman, Inc., and that he had not received his commissions for such sales. The court further stated that, if he did not establish these facts by a preponderance of the evidence, he was not entitled to recover. In other instructions the respective theories of the parties were fairly and fully submitted to the jury; and, as we have already seen, the court was not required to repeat the instructions in varying form.

We find no reversible error in the record, and the judgment will therefore be affirmed.