Schneer v. Lemp

17 Mo. 142 | Mo. | 1852

Gamble, Judge,

delivered the opinion of the court.

1. The law commissioner, in the first, third and fourth instructions given for the plaintiff, undertook to direct them as to the effect they were to give the evidence upon the finding of the particular facts. As an instance, he tells them that if the plaintiff contracted to work for the defendant and his partner in their brewery for a year at a stipulated price, they cannot infer that he worked under the same agreement for the second year, merely from the fact that -he continued to work in the brewery after the expiration of the first year, if in the meantime the partnership of the defendant was dissolved. The question of fact was before the jury, whether the service rendered by plaintiff to defendant was under an agreement to work.by the year for a fixed price, and the circumstances referred to in the instruction might well have satisfied the jury of the existence of such agreement for the second year. It was the sufficiency of the evidence to establish a fact upon which he was instructing the jury, not upon a question of law. In the fifth instruction for plaintiff, he tells the jury that the defendant is liable to the plaintiff in this action for his services after the expiration of the first year, if the partnership in which the defendant was engaged was dissolved. This liability is declared as existing, notwithstanding any agreement that may have been made between the parties for service to be rendered by plaintiff for an entire year, before he should receive any part of the compensation agreed upon. The sixth instruction given for the plaintiff alludes to a general custom as sufficient to control the effect of the evidence given to -prove a hiring for an entire year, when there was no proof of any general custom.

2. In the present case, the law commissioner seems to have thought that he was acting with becoming fairness and impartiality, when he gave all the instructions asked by both parties involving the opposite sides of the same question of law. This will appear by comparing the instructions given on both sides. It is to be regretted that such a course should be pursued. Let him give such instructions only as are consistent with his own opinions of the law, and then, at least, he will not expose both parties to the danger of a reversal, whichever way the trial may result.

As he has given wrong instructions for the plaintiff, the judgment will be reversed and the cause remanded,

with the concurrence of the other judges.