40 Kan. 646 | Kan. | 1889
Opinion by
This case was originally commenced by the defendant in error against the plaintiff in
Several errors are assigned, but we shall notice but one. The record recites that the plaintiff in error on the trial in the district court introduced testimony tending to show that the witness services rendered and performed by the defendant in error were not to be paid for; that they were performed as a brotherly act of kindness, and as a mere gratuity, and at the time it was understood between them that nothing should be paid therefor; that the defendant in error at the time of performing said witness services, told the plaintiff in error that if he should fail in his suit, that he would not charge him any witness fees; that the plaintiff in error at the time of the rendition of such services, offered to pay the defendant in error for the same, but that he refused to accept any payment therefor. The parties to this action are brothers. The plaintiff in error requested the court -to give the following instruction, based upon the testimony as above recited, which request the court refused, and to which refusal the plaintiff in error duly objected and excepted, to wit: “I instruct you that if the plaintiff performed the witness services in question, as a mere gratuity, or as a gift, or mere favor to his brother, that then, and in that case, the plaintiff cannot recover for the same.”
This proposed instruction fairly embodies a well-established principle of the law, and as the record contains the statement that there was evidence introduced by the complaining party tending to show a state of facts to which the principle could
It was a question for the jury to determine whether or not that fact was proved; but the plaintiff in error was entitled to an instruction if the fact was in issue and there was evidence introduced tending to establish it. (Mfg. Co. v. Nicholson, 36 Kas. 383.) The refusal to give such instruction is a substantial error that compels a reversal of the judgment. It is recommended that the judgment be reversed, and the cause remanded to the district court, with instructions to grant a new trial.
By the Court: It is so ordered.