2 Ark. 360 | Ark. | 1840
delivered the opinion of the court:
Before we proceed to examine the instructions, we must ascertain whether or not the proof shows a joint tenancy, or tenancy in common, or whether or not it establishes a partnership; for if it tends to establish none of these facts then we can look upon the instructions refused in no other light than as mere abstract propositions, which, whether right or wrong, were rightfully overruled by the court below. The object of instructions is to inform the jury .upon some point either of law or evidence that is applicable to the case upon trial, and to guide and govern their verdict. Upon mere abstract propositions, a court is not bound to instruct the jury. If the instructions asked for be irrelevant, they should be refused, as tending to mislead instead of to enlighten the minds of the jury; and to encumber the record with foreign and useless matter that distracts and obscures the issue to be tried.
The proof, in the present case, as spread out in the bill of exceptions, is meagre and every way unsatisfactory. It does not define with accuracy or precision how, or in what manner the parties rented the premises, or whether they were jointly seized or not, neither do we think that inquiry a matter of any moment in deciding the question now before this court. The testimony itself, when taken separately, and considered in connection with the whole transaction, conclusively shows that the contract between the landlord and his co-tenants for the rent was a parol agreement. For the record fails to state that it was a written acknowledgment of the parties under seal, or to produce it to the court, so that it could be seen what kind of instrument it was. And even if it were doubtful whether it was a parol agreement, or one under seal; still the presumptions in favor of the verdict would amount to full proof on the point, and clearly demonstrate the facts to be as we have before stated them. It being a parol agreement, and not a contiact under seal, the moment the defendant, Webb, executed his deed to the landlord for the rent, and it was delivered to, and accepted by him for that purpose, that instant it operated by intendment of law, as a merger or extinguishment of the joint liabilities of the co-tenants for the rent, and the plaintiff in the action was for ever discharged from all responsibility upon his parol promise or original undertaking. This principle is too familiar and self evident to require either argument or authority to support or illustrate it. It rests upon the known and universally admitted rule that the higher grade or dignity of instruments completely supercedes and destroys a less or subordinate one; because it furnishes the best and most conclusive evidence of the intention and rights of the parties; and consequently the inferior remedy is held to be merged or extinguished in the superior obligation. The execution of Webb’s deed under seal, was not only an extinguishment of the parol promise of himself and his co-tenants, but it was a payment of the rent, and it thereby raised a legal liability on the part of his co-lessee to refund or pay his portion of the rent to the defendant, upon ' which an action at law or a plea of set-off would lie, provided it was shown upon the trial, that the plaintiff had agreed to the change of the contract, either by express promise, or by tacit acquiescence. In the present case, the plaintiff, so far as appears from the record, consented to the change of the contract: first, by acquiescing in it, or not objecting to it; and secondly, by expressly admitting that he was willing to pay the rent in the defendant’s own paper. Here then is an express promise or undertaking to pay the defendant the rent; and of course the jury were fully warranted in their finding. Granting however that the evidence was uncertain on this point, (which is by no means conceded,) still this court would not be authorized in setting aside a verdict and awarding a new trial, merely on the ground that the jury had found contrary to the preponderance of the testimony. To authorize a new trial, the verdict must have been against the weight of evidence: so much so that on the first blush of it, it should shock our sense of justice and right. In regard to the questions of joint tenancy, or tenancy in'common, or of partners in trade, we would barely remark, that they do not enter into or constitute any part of the inquiry now before this court; for in no reasonable aspect of the case, do they, in the most remote degree, affect the consideration of the express contract of the plaintiff to pay to the defendant the rent. The defendant’s right of action accrued on his paying, by his deed, all the rent for the premises, and upon the plaintiff’s promise to to account to him for the same. Both of these facts are unquestionably established by the record; and they carry with them the legal inference of the plaintiff ’s liability. If this position be true, then it necessarily follows that all the instructions asked for by the plaintiff were mere naked abstract propositions, having no connection with or bearing on the evidence adduced; and consequently there is no error in the proceedings; and the judgment of the court below must be affirmed with costs.
