Marsalis v. Patton , 83 Tex. 521 ( 1892 )

COLLARD, Judge,

Section A.—The first assignment of error is as follows: “The court erred in the charge to the jury, as follows: 'With respect to the contract between plaintiff and the McCollin Opera Company, referred to herein, you are further told, that the legal construction of this contract would give plaintiff the right to collect all gate receipts under it; and proof being shown by both parties that defendant collected the gate receipts, the burden is on the defendant to show that he collected the same with the consent and approval of the plaintiff;’ because it misled the jury, and virtually charged them that de fendant was bound by the contract between plaintiff and the McCollin Opera Company, when in truth and in fact the reconvention of the defendant was based upon a contract made between him and plaintiff.”

We do not see how this charge, if it is conceded to be incorrect, can affect any contested issue in the case. The real questions in the case were: Did the defendant make proper application of the receipts? Did he pay expenses and debts with them under the contract with plaintiff? Has he properly accounted to plaintiff for them? It is admitted that he received all the gate money—the charge asserts this; and it is not objected that there was error in so doing. The vital issue was, For what amount of these receipts was he liable under the agreement and the facts? The rights of the parties, so far as we can see, did not depend upon whether defendant had plaintiff’s consent to take the gate money or not. The charge was wholly immaterial and harmless. The court in the beginning instructed the jury that the burden of proof was upon the plaintiff to establish his cause as alleged, and upon defendant to show his right to recover over against plaintiff. The issues were then submitted on both sides, and a verdict awarded to plaintiff for $386.28.

Appellant complains of the verdict, because it is not responsive to the issues and is contrary to* the law as charged by the court, because the court expressly charged them to find with respect to the three counts in plaintiff’s petition and the notes set up in reconvention by defendant, and to deduct the amount due on the same from the general finding. The verdict is as follows: “We, the jury in the case before us, to-wit, J. C. Patton v. T. L. Marsalis, find on the first count, that for services rendered the defendant by plaintiff, defendant is indebted to said plaintiff in the sum of $386.28, including interest; on the second count we find plaintiff due defendant $500, including interest; on the third count we find defendant due plaintiff $500, including interest; leaving balance due plaintiff, $386.28.”

The court submitted instructions on each of the three counts in the petition and the defenses thereto, as well as upon the affirmative relief asked by defendant, and then as follows: “The plaintiff’s notes set out by defendant in his plea being admitted by the plaintiff in his evidence, a recovery for the amount of the same according to their face should be had by the defendant. It is for you to say under this charge from the evidence before you what amount, if any, is due the plaintiff. Let your verdict show each of these separately; then by deducting one from the other let your verdict show in whose favor the difference preponderates.” The notes referred to in the court’s charge were one of May 23, 1889, for $45, and one July 1, 1889, the latter executed to the Dallas Land and Loan Company. We are inclined to think that neither of these notes was considered by the jury in making up their verdict. It would seem from its terms that it only embraced the three counts in the petition, the defenses thereto, and the affirmative matter set up by defendant on his version of the contract. At least we can not be positive that the amount due on the notes was deducted from the amount found to be due plaintiff. The verdict was not responsive to the issues submitted, and can not stand. We do not mean to say that the court’s direction to the jury to find the amount due on the notes (both notes) in favor of defendant is correct. Defenses were made to the note for $45 by plaintiff in his replication and testimony. The question has not been discussed by counsel, nor was it submitted to the jury. It is still open.

Adopted February 23, 1892.

We conclude, that because the verdict was not responsive and certain, defendant’s motion for a new trial on that ground should have been sustained, and that the judgment should be reversed and the cause remanded.

Reversed and remanded.