Holland v. Howard Bros.

105 Ala. 538 | Ala. | 1894

COLEMAN, J

The appellees, Howard Bros., commenced this action to recover compensation for services rendered as real estate agents in procuring- a purchaser of a farm belonging to the defendant. The first and third counts are based upon an agreement to pay for certain services to be rendered by the plaintiffs. The second and fourth counts are in the ordinary form for services rendered.

A demurrer to a complaint as a whole, consisting of good and bad counts, is properly overruled. We do not decide that either of the counts of the complaint is defective, but the demurrer is 'to the complaint, and the grounds of the demurrer stated are to be found only in certain counts of the complaint. The court did not err in overruling the demurrer. The other assignments of error, apply to the charge given for the plaintiff, and to charges x-equested by the defexxdant which were refused, and the overruling of defendaixt’s motion for a new ti*ial. There was evidence on the part of the plaintiff tending to sixpport every fact ixpon which the instruction given for plaintiff, was predicated. We find no error of law asserted in this charge. If defendant believed the charge to' be misleading in any respect, he should have prepared an explanatory charge. The court did commit a reversible error in giving this charge to the jury. What we have said is sufficient to show, that the affirmative charges Nos. 1, 2 and 4 requested by the defendant, were properly refused. Charge No. 6, x-equested by the defendant, is argumentative and misleading, and when referred to the evidence, is erroneous in law. The court did not err in refusing this charge.

There were several grounds stated, in the application for a new trial. Most of them have been disposed of by what has been said respecting the charges. One of the groxxnds is, that the-jury did not read all the written evidence taken out by tlxem in their retirement to consider their verdict. It is enough to say, without passing upon the sufficiency and competency of the question, that there is no proof to support the statement. The other was that the verdict was contrary to the weight of the evidence. It may be that, sitting as a jury, our verdict would have been different from that rendered. In trials of courts of law, parties have the constitutional right to have the facts passed'upon by a jury. This court has no authority and no desire to trench upon their constitutional rights. The judge who presided, had the witnesses before him and heard their testmony. The rule which we have declared applicable to appeals from an order of the trial court, refusing a new trial, is, “that the decision of the trial court, will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”—Cobb v. Malone & Collins, 92 Ala. 680. Applying this rule to the facts of the case we feel constrained to let the verdict stand.

Affirmed.