Defendant, Kelly, and one Rice were copartners in a hotel business. Defendant sold and conveyed to plaintiff by a bill of sale his interest in the
Plaintiff brought suit to recover such expenses, and had verdict and judgment in his favor. Plaintiff introduced evidence of several conversations with the defendant, tending to prove his claim. The parties finally met in the office of Fletcher & Wanty to execute the bill of sale, which was drawn by Mr.. Fletcher. Plaintiff testified that he there, in the presence of Mr. Fletcher, stated the agreement as to expenses; that Fletcher stated that he understood that defendant was to pay only $100; that Fletcher then left the room, and defendant then told plaintiff, to keep the $100 out of the purchase price, and he would pay all the money expense, as he had told him before. The evidence on the part of the defendant tended to show that it was then agreed that plaintiff should deduct $100 from the purchase price, and that this was all defendant should pay.
The circuit judge correctly stated to the jury what the issue was between the parties, giving the claim of each. At the request of defendant's counsel he instructed them that they should consider the value of the property sold, the surroundings of the parties, and all the testimony in the case. They then requested the court to give the following instruction:
“The bargain, if there was one, had no binding legal effect before the interview at Fletcher & Wanty's office, t*280 and the testimony of all the conversations leading up to that interview are before you only to throw light on what there occurred, and, if you find that at that interview, when the papers were drawn and exchanged, the bargain was that the $100 should be deducted, and Mr. Kelly should be to no more expense or liability in the matter, then, no matter what previous conversations disclosed, your verdict must be for the defendant.”
Instead of giving this request, the court instructed them that they should take all the conversations into consideration, including the last one, in making up their minds what was the understanding.
While it is true that the bargain was not binding upon either party until the execution of the bill of sale, still .that did not affect this parol agreement, which became valid upon such execution. If nothing had been said at that time about it, still it would have been valid. The sole question for the jury was whether such an agreement was made, and it was of no consequence whether it was made before or at the execution of the bill of sale. The request is objectionable, in that it would have been a virtual instruction to the jury that the parties had not previously agreed upon this matter.
We think no error was committed, and the judgment must be affirmed.