Cobb & Marston v. McKenzie

60 So. 943, 7 Ala. App. 203, 1913 Ala. App. LEXIS 52

• Court: Alabama Court of Appeals
• Decided: January 23, 1913
• Status: Published

Opinion

PELHAM, J.

The appellants brought suit in the trial court to recover of the appellee the sum of $3,400 alleged to be due as a commission in connection with the sale of certain lands. There was a jury and verdict for the plaintiffs for $15, and the plaintiffs prosecute this appeal, assigning as error the refusal of the court to give the following charge: “The court charges the jury that, if they believe the evidence, they must find for the plaintiffs for 5 per cent, of the sum named in the contract between defendant and John A. Campbell as the consideration for the sale of the lands to said Campbell.”

This charge is a positive instruction requiring the jury to find for the plaintiff in an amount more than $100 in excess of the amount claimed in the complaint; and the court cannot be put in error for refusing to instruct the jury to return a verdict in plaintiff’s favor in an amount greater than that claimed in the complaint, in an action of this kind.- — B. R., L. & P. Co. v. Lee, 153 Ala. 386, 45 South. 164; K. C., M. & B. R. Co. v. Thornhill, 141 Ala. 215, 37 South. 412.

The charge in this case in effect really referred the construction of a written contract or option to the jury. There was no sum named in this contract, as stated in the charge, and the amount could only have been ascertained by calculation and construction of the instrument. Tills contract was given for a stated consideration of $1*000, and provided for a deduction of this sum from one of the payments to be made on the purchase price under certain contingencies provided for in the option. Further provisions were made for the payment of a stipulated price per acre, with conditions as to cash and deferred payments, making a deed, etc. The construction of a written instrument should never he referred to the jury. — Southern Express Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140; Claghorn v. Lingo, 62 Ala. 230; Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52.

Charges should he complete in themselves (L. & N. R. R. Co. v. Young, 168 Ala. 551, 53 South. 213), and not refer the jury to the pleadings or written documents in the case, and devolve upon the jury an investigation of such pleadings or documents to determine the meaning or effect of the charge and the finding to be made in obedience to it. Such charges, when given, may not constitute reversible error; but they should not be given, for they are confusing and have a misleading-tendency. Certainly their refusal is not reversible error. — Lewry Art Co. v. Agricola, 169 Ala. 60, 53 South. 145; W. U. Tel. Co. v. Northcutt, 158 Ala. 539, 48 South. 553, 132 Am. St. Rep. 38; Ala. Gt. So. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84; So. Ry. Co. v. Hollos, 151 Ala. 335, 43 South. 844.

The charge requested was properly refused, and the case will be affirmed.

Affirmed.