Hall v. Wingate

126 S.E. 796, 159 Ga. 630, 1924 Ga. LEXIS 6

• Court: Supreme Court of Georgia
• Decided: December 19, 1924
• Docket: No. 4252
• Status: Published

Opinion

Russell, C. J.

(After stating the foregoing facts.)

After a careful and painstaking review of the voluminous record in this case, there appears to be no reason why there should be a reversal of the judgment of the trial court upon any of the various rulings as to which complaint is made. The law of the ease was practically settled by the ruling upon the demurrers to' the answer of the defendant and the amendment thereto, in which the defendant sought by way of cross-bill to secure affirmative relief in his own behalf. The cross-bill was attacked upon the-ground that the alleged contract was unilateral and without consideration, void under the statute of frauds, and so unjust, unfair, and unconscionable that the enforcement of specific performance should be refused. We think the general demurrers were properly overruled. The agreement alleged in the defendant’s cross-action was not void under the statute of frauds, because acceptance and performance of the alleged parol offer on the part of the plaintiff to the defendant was alleged, and it was further averred that the defendant had complied with the proposal of the plaintiff to the full satisfaction of the latter. Flagg v. Hitchcock, 143 Ga. 379 (2) (85 S. E. 125). A contract even as to the sale of an interest in real estate may consist of an offer, acceptance, and performance. Civil Code (19.10), § 3223 (2). If the law properly requires specific performance of a parol contract only partially performed when it would be a fraud upon one of the performing parties not to permit him to complete it (Civil Code (1910), § 3223 (3)), much more can there be no question of the fact that where there has been either full performance of the original contract, or acceptance of a satisfactory substitute and full performance of something satisfactory to the original proposer, the contract should be required to be performed. The contract alleged was not unilateral, because,, when the services which Wingate undertook to perform in selling the two bodies of timber were actually performed, the consideration proposed by Iiall was supplied. Treating the agreement as if it were a mere undertaking on the part of Wingate to sell the property as a real-estate agent for Hall when he found a purchaser ready, able, and willing to purchase on the terms proposed by Hall—that is, for not less than $22,500 for each of the bodies-of timber,—Wingate would have been entitled, under the agreement alleged by him, to $25,000, the difference between the price fixed by Hall and $70,000, the price actually obtained by him, or the sum of $25,000, regardless of their 'relation as partners, and in the absence of any other stipulation which Wingate alleged accompanied this particular feature of the parol offer, and would have been entitled to a judgment therefor, although the agreement had not been reduced to writing. Watson v. Brightwell, 60 Ga. 212. And so in this case the performance by Wingate of that which Hall proposed should be done supplied mutuality and consideration sufficient to vitalize the negotiations into an enforceable contract. The test of mutuality is to be applied as of the time the contract is to be enforced; and if the , promisee accomplishes the object contemplated, then the promise is rendered valid and binding. Owenby v. Georgia Baptist Assembly, 137 Ga. 698 (74 S. E. 56, Ann. Cas. 1913B, 238). It was not neces'sary that the promisee agree to do the act proposed by the promisor. It is essential that he actually perform. “Though a promise may be nudum pactum when made, because the promisee is not bound, it becomes binding, when he subsequently furnishes the consideration contemplated by doing what he was expected to do.” Brown v. Bowman, 119 Ga. 153 (46 S. E. 410). See also Robson v. Weil 142 Ga. 431 (83 S. E. 207).

But it is insisted that this was a partnership, and that the agreement as to the timber on the Newell place was partnership property. As to a similar contention it has been held that a contract is not void for want óf mutuality merely for the reason that the purchase-price was to be paid from the proceeds of the profits of a going business. Zipperer v. Helmnly, 148 Ga. 480 (97 S. E, 74); Murphy v. Creamer, 10 Ga. App. 593 (74 S. E. 61). The mere fact that Hall offered to sell the timber upon the two mentioned tracts of land at a price far below its value would not of itself render the contract -either unreasonable 'or unjust or unconscion- • able, there being nothing to show that his offer was not made of his own volition and nothing to indicate that any advantage had been taken of him by way of concealment or, misrepresentation. There is no merit in that ground of the demurrer. Occasions often -arise where one who thinks he has made a bad bargain or entered into a very disagreeable connection is glad to make some financial sacrifice in order to disengage himself and put the proceeds of a poor sale to a different use. The special demurrers were likewise properly overruled. Counsel for plaintiff in error now expressly abandon their insistence upon the demurrer to paragraph _ 17 of the cross-bill, but insist upon the demurrer to paragraph 18. In this ground of the demurrer the plaintiff insisted that the' allegation that the defendant accepted the offer made by the plaintiff was a mere conclusion of the pleader, and that it should have been alleged how, when, and where the offer was accepted. We think that the allegations of the defendant as to the time, place, and circumstances under which the alleged offer was made, which antecede the statement that the offer was accepted, conclusively raise the- • inference that the acceptance was at the same time and place and under the circumstances named; and in any event the statement that one accepted a definite and described offer can not be a mere conclusion, but is rather a statement of a fact, inasmuch as such proposal must either be accepted or refused. It might be necessary, in case of a refusal, to state that there was silence and thereafter no action, from which refusal must be inferred, and a special demurrer might be used to elicit information as to the method in which the refusal was made manifest; but a statement that a proposal is accepted is not dubious or doubtful. What we have just said applies also to the statement that the defendant had consummated a sale of the timber to the Blakely Hardwood Lumber Company, to which the plaintiff demurred as being a mere conclusion of the pleader. It is probable that a special demurrer might have been so framed as to have required a statement as to when and how the trade was consummated, but'this language is not demurrable upon the single ground that it is a conclusion of the pleader; for to state that “I consummated a sale” is the statement of a fact, which statement is either true or untrue, since the word sale has a well-established legal definition. Whether the labor and expense incurred by the defendant in making the sale was great or small is immaterial in view of the issue in this case, where the real issue was whether Hall made the proposal as testified to by the defendant, and whether the defendant had complied with the proposal to the satisfaction of Hall; and therefore the overruling of that portion of the demurrer, even if the plaintiff had been entitled to know the exact amount of labor and expense incurred by the defendant, was not error in a legal sense, because it can not be conceived to have been harmful to the plaintiff. The portion of the demurrer addressed to the allegation that the sale was made on terms approved by Hall and accepted by him as compliance with the offer made by him to the defendant, on the ground that it was a mere conclusion of the-pleader, and on the further ground that the terms are not set out, was properly overruled, because the information thus sought was supplied in other portions of the answer. The same is true as to the complaint that the language, “likewise in accordance with the terms proposed and agreed to by said Hall when the said offer was made,” is a conclusion of the pleader without any facts to sustain it. Since it is lawful for a defendant to file contradictory-pleadings, the plaintiff’s contention that there is an apparent contradiction between a statement of the defendant that he carried out the agreement in strict accordance with the terms proposed by Hall, when in another part of the answer he relies upon the ground that Hall accepted notes instead of cash, which was really a substitution of what would be presumed to be a cash sale, was properly overruled by the court.

Exception is taken to the allowance of an amendment to the defendant’s answer, which was offered for the purpose of obtaining the opening and conclusion-, and to the court’s allowing the defendant the opening and conclusion; the plaintiff contending that he was entitled to this important and valuable privilege. We find no error in the ruling of the trial judge upon this point. It is insisted that the statement of the amendment was not broad enough to constitute a full admission of liability, so as to entitle the defendant to the opening and conclusion. It must be borne in mind that the plaintiff’s petition only asked for an injunction against the defendant, for the appointment of a receiver, and for a dissolution of the partnership. The defendant admitted “that unless he sustains the allegations of his answer in the nature of a cross-bill, beginning with paragraph 15 thereof and ending with the end of said original answer, that plaintiff would be entitled to an injunction against this defendant, to a dissolution of said partnership, and to a receivership for the partnership assets and the property involved in the litigation; and he therefore assumes the burden of proving the facts stated in the cross-bill of defendant, to the end that he may obtain specific performance of his contract set out in said cross-bill.” We think this admission was broad enough to entitle the defendant to the opening and conclusion. But aside from the amendment, and if the amendment had never been offered, under the well-settled rule that he who carries the burden of proof ■is entitled to the opening and conclusion it was not error for the court to allow the defendant the opening and conclusion in this case. The affirmative relief sought by the defendant was so wholly inconsistent with the relief sought by the plaintiff, whose allegations of fact were not controverted, that a decree for the plaintiff must necessarily have followed' unless the defendant by affirmative proof had established the contentions set up in his answer in the nature of a cross-bill. The relief sought by the plaintiff dealt with property alleged to be the property of the partnership. The defendant averred that that property was not the property of the partnership but was his in his own right. The defendant admitted that, had there been a partnership, he could not have prevented the relief sought by the plaintiff unless he established his alleged contract by the performance of which he claimed the title to the property in dispute had vested in himself alone. Undoubtedly, therefore, the burden of proof fell upon him, and this burden entitled him to the opening and conclusion in the introduction of evidence and the argument.

Upon the trial of the case there was direct conflict in. the evidence as to the terms of the proposal made by the plaintiff'to the defendant, and a verdict in favor of either of the parties would have been authorized. For this reason the trial judge did not err in overruling the general grounds of the motion for a new trial, unless there were such errors in the trial as erroneously induced or contributed to cause the finding actually returned by the jury; and for this reason we shall deal with the several grounds of the amend ■ ment to the motion. *

The fourth ground of the motion for new trial excepts to the allowance of the amendment to the defendant’s answer to which we have already referred. The plaintiff preserved exceptions pendente lite- to this point, or else the same could not be considered, because the principle that rulings upon the pleadings are not subject to review in'motions for new trials is hoary with age, and all courts bow to it reverently. Mayor &c. of Dublin v. Dudley, 2 Ga. App. 763 (59 S. E. 84). But this ground of the motion properly excepts to the fact that in the trial the court allowed the defendant to open and conclude, over plaintiff’s objection; and what we have said as to this portion of the, exceptions as preserved pendente lite applies to this portion of the ground of the motion, and need not be repeated.

Exception is taken because the court allowed the witness' Wingate to testify with reference to the contents of a slip of paper as set forth in the statement of facts, and to the admission of the paper itself at a subsequent stage of the trial. It appears from the record that after Wingate had testified at length as to the agreement entered into between Mr. Hall and himself, his attention was called to a slip of paper which he testified was given him by the plaintiff, and upon which were’the words and figures, “New 47,000, Wimb 22,500, $69,500,” and he was asked “what Mr. Hall said those figures were intended to represent;” and that the court allowed him to answer the question and testify that both the plaintiff and himself understood the word “New” to refer to the Newell place and the word “Wimb” to the Wimberly timber, and that the total figures on the slip of paper represented the full amount of the timber on the Wimberly place and the purchase-price of the Newell plantation. It was stated by counsel for defendant that the paper was not offered as evidence of a contract, but introduced merely as a circumstance corroborating the parol testimony of the witness as to the parol agreement upon which the defendant relied. The plaintiff insisted that the testimony was inadmissible, because it was an effort to vary by parol a written contract, and because if it was considered as a contract it was void under the statute of frauds. A review of the record shows that the court did not err in permitting the witness to answer the question over the specific objection urged, because it is plain that the defendant was not relying upon any contract reduced to writing. The fact, if it was true, that the.plaintiff had given this memorandum (to which he had signed his name) to the defendant, and in which the amounts corresponded with those testified to by the defendant, could be used by the jury as corroboration of the testimony of the defendant in regard to the alleged parol contract.

In the sixth ground of the motion for a new trial the correctness of the charge as set forth in the'statement of facts is challenged. It is argued that the judge should not have used the word “contract,” because there was no evidence to support the use of that word, because there was no evidence that the offer of the plaintiff was ever legally accepted by the defendant, because the alleged contract was void under the statute of frauds, because there was no consideration for the contract, because the contract was not performed, because the $69,500 was not paid in cash, and because the alleged agreement was void for want of mutuality. The movant contends that the giving of the charge, which really only submitted the contentions of the defendant, was error, because all questions as to the making of the alleged contract claimed by the defendant should have been eliminated from the case. What has been said in the ruling upon the demurrers applies to the exception to the instruction upon the ground that the alleged contract was void under the statute of frauds, and void for want of mutuality, and void for lack of consideration; and as the defendant proved his case as laid, the charge of the court was not erroneous for any of the reasons just mentioned. Was the instruction erroneous because the alleged contract was not sufficiently certain and definite ? Our law provides that specific performance will not be decreed except of a contract certain and definite in all of its terms. But we do not think that the exception of the plaintiff is well taken, because the contract testified to by the defendant in error was both certain and definite in its terms,—that the plaintiff would accept $47,000 for all of his interest in the Newell plantation and for the indebtedness due by the partnership of Hall and Wingate, and $22,500 for his timber on the Wimberly place, at any time before January 2, 1924. We think the court was authorized to give the instruction despite the complaint as to its correctness. As we have already ruled, a contract may be legally accepted by actual performance on the part of the promisee; and so the charge was not unauthorized on the ground that the defendant never legally accepted the contract. Another point raised in this ground of the motion was that the charge was unauthorized, because the payment of $69,500 should have been in cash, whereas $56,000 of the purchase-price, as shown by the evidence, was paid in notes. We do not think that the charge was objectionable on the grounds stated, merely because the testimony showed that Mr. Hall accepted notes for a.portion of the purchase-price in lieu of cash, since there was no evidence that Mr. Hall made any point as to this, but willingly took the notes at a time when he could have declined to accept anything but cash. His acceptance of the notes was a waiver of his right to have cash. It appears to have been a voluntary acceptance of notes (no doubt bearing interest) which were given by a maker so satisfactory as to provide a safe interest-bearing investment until they were paid. What has been said as to the sixth ground of the amended motion applies also to the seventh ground, and our ruling upon both grounds is embodied in the sixth headnote.

In the ninth ground of the motion for a new trial the plaintiff complains that in a case of specific performance the court should not have given the instruction which is usual in criminal cases with reference to reasonable doubt, to wit, that the jury should not create in their minds a vague or fanciful doubt as to the contentions of the defendant, but the doubt must be one reasonably entertained by the jury, one that arises from the evidence or lack of evidence, and leaves the mind wavering, not satisfied as to the defendant’s contention. The plaintiff contends that 'the burden was upon the defendant to establish the alleged parol contract by evidence so clear and convincing as to leave no reasonable doubt as to its existence; that the instruction is not a correct statement of the law as applicable to a civil case; and that the instruction must have unduly given the jury an impression favorable to the defendant as to the amount of proof he would have to submit to them in order to prevail. The court had already instructed the jury in a preceding portion of his charge that the defendant “undertakes to establish to your satisfaction beyond a reasonable doubt that a certain definite contract was made by Mr. Hall with him, and that all of the terms of said contract were carried out and performed by him, and that by reason of that condition he is entitled to have the title to that land decreed to be in him.” The judge had also instructed the jury, immediately preceding the instruction complained of, “that under our law such a parol contract as to the sale of lands can not be considered as established in a court, unless made out so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement.” In connection therewith, and immediately following the statément that the evidence must so clearly, strongly, and satisfactorily establish a parol contract as to the sale of land as to leave no reasonable doubt as to the agreement, the court proceeded to define what is meant by the term “reasonable doubt,” saying: “I charge you that a reasonable doubt is a doubt for which you can give a reason. You would have no right to create in your minds a vague or fanciful doubt as to the contentions of the defendant, but the doubt must be one reasonably entertained by you, one that arises from the evidence or lack of evidence, and leaves your mind wavering, not satisfied as to his contentions.” The court did not err in giving the instruction. There can be no impropriety, in any case where the burden of proving a fact by clear, strong, and satisfactory evidence and beyond a reasonable doubt is imposed, in properly explaining and defining the term “a reasonable doubt;” and though the principle that in ease of specific performance the petitioner must establish his contentions beyond a reasonable doubt is well established and has been upheld by th,is court since the case, of Printup v. Mitchell, 17 Ga. 558, 567 (63 Am. D. 258), this fact furnishes no reason against but Tather a reason why the judge should explain to the jury, if he thinks proper, the meaning of the term “a'reasonable doubt” as well in a civil as in a criminal case.

The tenth ground of the motion for a new trial is not well taken. The court charged that the defendant contends that sometime last fall he and the plaintiff had some differences in regard to their partnership business, and that eventually the plaintiff offered to take the amount owing to him by the partnership in settlement for his, the plaintiff’s, interest in the partnership property, and that this much of the contention of the defendant was not disputed by the plaintiff. It is insisted that this instruction was error, because the court omitted to state that the offer was limited to Christmas of the year 1922, as contended by the plaintiff, and because the court said nothing in the instruction to tell the jury that the defendant admitted that nothing was said as to whether the payment was to be in cash or on credit on some later date. This exception is without merit, because the record shows that the court did not state anything that was not undisputed; and it is well settled that a charge which is correct gives-no ground for exception because something else which might also be correct is omitted. Aside from this rule, however, the court, in stating facts about which there is no dispute, is not authorized to enter into a detailed statement of facts in behaíf of either of the parties as to which they differ. If the court had stated, as it is insisted by the plainti fT that he should have done, “that whatever offer he made was limited to Christmas of 1922,” he would have been obliged also to have stated that the defendant contended that he had until January 2, 1924, or until April 3, 1924, to comply with his agreement; and the same thing would be true as to the complaint as to the omission to mention that the plaintiff claimed that the payment was to be in cash, and that the defendant was to assume and pay the amount of the indebtedness to the John Hancock Insurance Co. It is clear that the charge complained of did not necessarily impress the jury with the idea that the court was favorable to the contentions of the defendant, because nothing was stated except what the record shows to be facts upon which the parties iñ their contentions and testimony agree.

The court did not err in charging the jury that as a matter of law payment, unless stipulated definitely by the parties, must be in cash or its equivalent. This instruction, if harmful to either party, had a prejudicial tendency as against the defendant, because the defendant did not contend that the payment was made in money, and the jury might have understood from the use of the word “equivalent” that the court meant a check or draft, or money transferred by telegraph, or any paper which may be transferred for money; and the. defendant’s contention is that the requirement that the payment should be made in cash was waived by the acceptance of notes. Instead of a contention that he actually complied with a requirement that the payment should be in cash, he contended and introduced evidence to support the contention that the plaintiff wanted to accept and did accept promissory notes, payment of some of which was long deferred. But the instruction complained of could in- no event have been harmful, in view of the fact -that the court immediately followed the instruction here complained of by instructing the jury: “However, a party to a contract might, by the acceptance of money, notes, or any other thing of value, waive the requirement that the payment should be made in money,” which so limited the meaning of the word “equivalent” as to render the instruction as a whole an' exact and correct statement of the law upon the subject. For this reason the assignment of error contained in the twelfth ground of the motion can not be sustained.

The assignment of error contained in the thirteenth ground of the motion for a new trial is without inerit, for the reasons stated in dealing with the first ground of the amended motion. The alleged contract was not void under the statute of frauds, or for any of the other reasons alleged; and even if the plaintiff’s proposal be construed as a continuing parol offer to contract, performance by the defendant accepted by the plaintiff by receiving the check and notes for $70,000 as the purchase-price of the two tracts of timber created a complete contract. It is insisted in this ground of the motion that there was no evidence tliat the plaintiff gave the defendant until the expiration of the partnership on January 2, 1924, to comply with the agreement, and that for that reason the instruction was erroneous. While it is true that the plaintiff swore that his offer was limited to Christmas of the year 1922, the defendant swore equally positively that the option extended until January 2, 1924; and both sides of the proposal were fairly presented to the jury.

In the fourteenth ground of the motion the plaintiff presents the contention that it was er-ror to give the instruction of which complaint is made, because it submitted to the jury whether the defendant would be entitled to a decree for specific performance on the idea that the defendant had complied with the proposed contract, regardless of whether the plaintiff knew or understood at the time he accepted the check and notes that it was intended to be a compliance on the part of the defendant with the terms of the alleged contract. The plaintiff insists that the alleged proposal could not amount to a contract, was never accepted by the defendant, was void under the statute of frauds, and was without consideration. For the reasons hereinbefore stated we can not sustain the contentions last mentioned. While the evidence as to whether Hall knew, at the time he accepted the check and notes, that Wingate intended and understood that the check and notes were being accepted by Hall as a compliance with his original proposal is conflicting, there are sufficient circumstances in the record to authorize the instruction given by the court upon this point, and to warrant the jury in finding that there was no reason why Hall should have forgotten the terms of the proposal to Wingate (if it be true that he made the proposal testified to by Wingate), and sufficient evidence to warrant the jury to find that Hall accepted the check and notes with the knowledge that Wingate at least understood that they were being delivered to him in accordance with and in compliance with the proposal of December 14, 1922, as testified to by Wingate. Civil Code (1910), § 4267.

The charge of which complaint is made in the fifteenth ground, of the motion was not erroneous for any reason assigned. The court charged the jury, in effect, that if there was a valid legal consideration for the promise of Hall to Wingate, the latter as promisee might sustain his action, even though he did not pay the consideration himself, and even if the payment was made by another for him or induced to do so by his efforts. We think this a correct statement of the law. Civil Code (1910), § 4249. Owenby v. Georgia Baptist Assembly, supra.

In view of what we have just said, it was not error to give the instruction of which complaint is made in the sixteenth ground of the motion, because the instruction is based upon the assumption of the validity of the contract claimed by the defendant-, or because the instruction excluded from the consideration of the jury the contention of the plaintiff that the alleged offer was limited to Christmas, 1922, or because it excluded the plaintiff’s contention that he was to receive all of the purchase-price brought by the Wimberly timber and one half of the purchase-price brought by the Newell timber. Nor did this instruction assume that the contract as to the Wimberly timber was as contended by the defendant rather than as contended by the plaintiff, since in another portion of the charge the contention of the plaintiff was fairly and adequately presented. Exception is also taken in this ground to the use of the language, “it would be your duty under your oaths to find a verdict for the defendant,” upon the ground that this language must have unduly impressed the jury with their obligation to find for the defendant, because the court did not use any such expression in his charge with reference to the plaintiff. We do not think that the addition of the words “under your oaths” was so prejudicial to the plaintiff as to warrant the grant of a new trial, in view of certain presumptions as to jury trials which must be indulged and recognized. (1) Every jury must be presumed to'comprise twelve citizens of at least ordinary intelligence, fairness, and firmness in their own opinion. (2) In every charge by the court there is a possibility of lapsi linguae. (3) Every juror must be supposed to know that he is bound under his oath to render a true verdict according to the evidence, and that his oath applies no less to evidence in behalf of one party than the other. A trial judge is bound studiously to avoid all language or any conduct which will lead the jury to suspect that he is favorable to one party to the cause rather than to the other; but if the presumption with reference to the quality of the jury can be relied upon, we do not see, considering the entire charge as it appears in this record, how the most critical juror could have drawn an inference, from the fact that the judge did not insert into his instruction as to the plaintiff’s contentions the words “under your oaths,” that for that reason the judge was favorable to the contentions of the defendant.

We find no error in the refusal of the court to give the requested instructions embodied in the eighteenth, nineteenth, twentieth, twenty-first, and twenty-second grounds of the motion for a new trial. The principles of law suggested by these requests, in so far as the same were correct and pertinent, were covered in the general charge. The proposed instruction set forth in the eighteenth ground was clearly objectionable, and.was properly refused as argumentative. The one set forth in .the nineteenth ground, in so far as it asks that the jury be instructed that as a matter of law the agreement alleged by the defendant, and upon which his cross-action was based, would not be binding upon the plaintiff, “if it were made by mere word of mouth; this for the reason that there was no consideration paid to plaintiff for making said agreement,” without more, was not a correct statement of law upon this point; and even though the remainder of the request may embody correct principles of law, it was not error to refuse the request as a whole. The request as set forth in the twentieth ground merely sets forth a statement of conflicting' contentions of the plaintiff and the defendant, as to the time within which the defendant should perform his undertaking'to sell the timber and pay his debt to the plaintiff for the land and the store indebtedness of Hall & Wingate. The court in the general charge called the attention of the jury in his own way to this precise contention. The request contained in the twenty-first ground asked that the jury be instructed that where a proposition is limited to a certain time it must be carried out within that time, or it lapses and becomes void. We think the court properly refused this request, because the instruction was not broad enough to cover the facts of the case on trial, and was therefore not adjusted to the evidence. There are eases where it would not be error to give such instruction; but the requirement that the contract be complied with within a limited time, like any other stipulation, may be waived, and it is not true that all propositions which are limited to a certain time lapse and become void unless they are actually performed or are carried out within the specified time. For the same reason the request embodied in the twenty-second ground of the motion could not properly have been given to the jury. The court was asked to charge “that if the plaintiff’s contention is correct, and the authority to sell was-limited to a time prior to Christmas of last year, then no sale could be made under that proposition under any circumstances after Christmas of last year.” Further in the request the court was asked to charge the jury that “the law is that where an agent is authorized to sell property at a minimum price, that does not mean that the agent is entitled to charge as commissions all that he succeeds in making the property bring over and above' that price, unless the owner so agrees.” The request also embodied an instruction “that even if the plaintiff did, by mere word of mouth agreement, say to the defendant that he, the defendant, could purchase from the plaintiff said Wimberly timber for $22,500, such agreement would be void under our law.” The principles embodied in this ground of the motion were more correctly stated by the trial judge; and it follows that there was no error to refuse to present them in the form requested.

In the twenty-third ground it is alleged that the verdict is contrary to law, for the reason that specific performance of a voluntary agreement or mere gratuitous promise to convey land will not be decreed; and that it was not claimed in this case that any possession of the land was given under the agreement accompanied by valuable improvements made on the faith of the agreement, nor was it claimed that there was any consideration for the plaintiff’s agreement which could be properly claimed to be meritorious under the Jaw, because whatever time and work the defendant claimed to have expended in making the sale of the timber was time and work which belonged to the firm of Hall & Wingate and not to the defendant himself. The determination of whether the verdict is contrary to law upon this point must depend upon the construction placed upon the evidence by the jury. We do not think that for any reason assigned in this ground the verdict was contrary to law by reason of the fact that the defendant failed to prove a meritorious consideration moving to the plaintiff. In the first place, the movant is in error in alleging that the-evidence showed that the time of the defendant under the contract belonged entirely to Hall & Wingate, and that therefore it should not be taken into account as supplying consideration. There is no phrase in the contract binding Wingate to give his entire time and attention to the business of Hall & Wingate. The evidence is to the effect that Wingate was to conduct the farming operations, but no specific amount of time is indicated or required to be devoted to this duty. Presumably he should be required to give the same attention to the partnership plantation as he would if it were his individual property; but there is nothing to indicate that, even measuring up to this standard of good faith, there would'not be considerable time when it would not be necessary for him to actually participate in the labor -of the farm. There is nothing to indicate that he would not have enough time in which to make a trade for this timber, as a farmer ordinarily has to make such trades during the year as he desires. The fact that the check and notes delivered to Hall arose from the proceeds of the sale of his own property, or of property in which he owned a half interest, is of no consequence if he used the services of Wingate to obtain a price for the timber fixed by himself upon employment of Wingate as an agent, or if he agreed to sell him the property at a fixed price and Wingate thereafter resold the property at a profit:

It is insisted that the verdict is wrong, because the alleged contract is unreasonable, unjust, and unconscionable; that it virtually takes from the plaintiff his own property, and imposes upon him a loss which is so outrageous as to shock the moral sense. If this complaint is well founded, the verdict should have been set aside; for while juries are the judges of the testimony and the credibility of the witnesses, they can not render a verdict contrary to law in that the conclusion reached by them is abhorrent to the intrinsic principles of justice and fair play. The plaintiff had invested $4287.50 paid to the owner of the Newell place, and had assumed an obligation of $15,000 loaned by the John Hancock Life Insurance Company. This was the sum total of his original investment. During nearly six years which had elapsed before his proposal to the defendant, he had had the latter’s services at a rate of less than $2 per day, and the latter had cleared 1000 acres of land and had erected 30 tenant-houses on the place, besides other improvements. In making these improvements and in other expenditures incidental to their farming operations the firm of Hall & Wingate had incurred an indebtedness to the plaintiff of many thousand dollars, according to the plaintiff about $53,000, and according to the defendant about $46,000. As a member of the firm of Hall & Wingate the plaintiff was as much liable for the large indebtedness as was the defendant, but as the seller of the supplies there was included in the indebtedness the usual mercantile profits in which the defendant did not share. In other words, naturally the original cost of the goods to the plaintiff was a sum perhaps considerably less than the amount charged to Hall & Wingate, and according to the evidence Wingate was wholly unable to meet his liability upon this account. The offer which the defendant says the plaintiff made him,-—to take $69,500 for the timber’ of the plaintiff on the Wimberly place and $47,000 for all of his interest in connection with the Newell plantation, including the origina '• purchase-price which the defendant owed him for supplies, was not, as we consider, an unusual or an unreasonable contract in the condition of affairs then existing. At the worst, in receiving the $47,000 the plaintiff would regain the $4287.50 which he had expended in the purchase of the place, and would receive over $40,000 upon the account for supplies, which, while not payment in full, would probably cover the actual cost of the articles supplied. It was simply a question of a settlement to produce cash if the defendant, in selling the two pieces of timber, could get together $69,-500. Such transactions are not at all unusual or infrequent; and to brand this as an unconscionable contract would in our opinion distort the meaning of that term. An unconscionable contract is one abhorrent to good morals and conscience. It is one where one of the parties takes a fraudulent advantage of another. “An unconscionable contract is one such as no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other.” 4 Words and Phrases (2d series), 1047. “Equity will not enforce an unconscionable contract ; but the fact that . . the entire contract is more favorable to one party than to the other does not ordinarily render it ‘'unconscionable/” Chanute Brick &c. Co. v. Gas Co., 82 Kansas, 752 (109 Pac. 398). Furthermore, the contract being in parol and depending upon performance to make it perfect and complete, it seems that the plaintiff would have declined, on April 3, 1923, to have accepted anything but cash, thus waiving exact compliance with the terms of payment.

The rulings contained in headnotes 17 and 18 require no elaboration.

We find no substantial ground for complaint in the exception to that portion of the decree wherein the defendant was required to pay to the plaintiff within 30 days the sum of $2572.63. The plaintiff claimed that the defendant owed him $3042.63 for supplies furnished subsequently to December 14, 1922. $3042.63 was the plaintiff’s own statement of the account. He claimed no inore, and the defendant admitted the amount. The jury set up and established the contract whereby the defendant was entitled to a deed to the Newell plantation and an acquittance from all debts of the partnership. of Hall & Wingate prior to December 14, 1922, in consideration of $69,500. The plaintiff received in money and notes from the Blakely Hardwood Lumber Company, which were accepted by him, $70,000, leaving a difference of $500 for which the defendant, under the contract as establishedrby the jury, was liable; and it will be readily seen that, deducting this amount from the entire debt claimed by the plaintiff, there remained exactly the sum which the court decreed should be paid by the defendant. Judgment affirmed.

All the Justices concur.