William B. Hooker, Appellant, vs. William H. Johnson, Appellee, 10 Fla. 198

DuPONT, C. J., delivered the opinion of the Court. This is au action of covenant instituted in the Circnit Court of Hillsborough county, by Johnson the appellee, against Hooker the appellant. The declaration sets out m Jmo verba,the instrument sued upon, which contained divers and numerous covenants to be performed by the pai'ties respectively. It also avers a full performance by theplaintiff and complained that the defendant had failed to perform the covenants stipulated to be performed on his part, and set forth specially the several breeches complained of.

The.defendaut filed several sets of pleas, some of which were ruled out upon demurrer, but as no exception was taken to these rulings, it will be unnecessary further to advert to them. The pleas upon which issue was joined are as follows: 1st. Non-performance of conditions by the plaintiff. 2d. Excuse for non-performance by defendant. 3d. Set-off. •4th. Non est factum. 5th. Former recovery.

Upon these issues the cause went to trial, and after the testimony had been closed, the counsel for the defendant asked the Court to instruct the jury as follows: “that unless the plaintiff, Johnson, has proven that he has performed all of his part of the covenant, then they must find for Hooker, the defendant,” which instruction was given with the following addition : “ but if they are satisfied from the evidence that the non performance of the plaintiff, if any was occasioned by the non performance of the defendant, they should find for the plaintiff.” Under this charge of the Court, the jury returned a verdict for the plaintiff for the sum of $614, for which amount judgment was accordingly entered.

The defendant’s counsel then applied for a new trial upon the following grounds, viz : 1st. Because the evidence which was given in the case does not sustain so-large a verdict. 2d. Because by the evidence which was given in the case, the jury should have found for the defendant. 3d. Because the jury gave excessive damages. 4th. Because the jury was misled by the addition which the Court attached to the charge asked for by defendant’s-counsel. 5th. Because the verdict is given against evidenc'd.

The Court refused to grant a new trial, and the appeal be-' ing brought to this Court, the following causes are assigned for error: First.

In giving the qualification or addition to the’ charge' asked to be given by the defendant to the jury.- Second : In not granting a new trial on tlie second cause assigned by defendant, because the deposition of Levin P, Johnson and the evidence of Edmund Jones did not sustain the plaintiff in the issue raised by the fourth plea* "When this causo was before us at a previous torn!, the record in that appeal exhibited the identical exception which is now assigned as the first cause of error in this case, and although the judgment was reversed upon another ground, viz. the admission of the evidence of an interested witness, yet the Court then intimated in very decided language that the addition or qualification attached to the instruction prayed was manifestly improper, as being irrelevant to the issue joined by the parties.

In the opinion delivered in that case the Court say : “The defendant moved the Court to instruct the jury that if they believed from the testimony that the plaintiff did not perform his part of the contract, then they should find for the defendant, which the Court gave, with a qualification, that if tlie jury find that such non performance on the part of the plaintiff was occasioned by the act of the defendant, the defendant would he liable. It is insisted that the Court erred in attaching this qualification, and we are inclined to that opinion.

By referring to the issues which the jury were sworn to try, we find none alleging that a non performance of the plaintiff was occasioned by defendant.

If there be none, then there was no authority on the part of the Court to give to plaintiff the advantage of a position he had not assumed in his pleadings.*’ In that opinion the Court says further : “ As the case will be reversed for the reasons already stated, permission should be given to amend, as well the declaration as the other pleadings, so as to present the case fully and fairly upon the merits.” Under this permission and in accordance with the intimation given, the Counsel for the plaintiff did amend his deflation previous to the last trial in the Court below, with the purpose of presenting such an issue as would warrant the qualification of the charge of the Court) as given on the previous trial.

In order to perceive how far that amendment accomplished the purpose contemplated, we will set it out at large.

The original declaration contained an averment of full performance by the plaintiff, of the covenant stipulated to be performed by him) and after specially setting out the several breaches complained of, proceeds as follows : “ By reason of which said several breaches of said agreement on the part of said defendant, the plaintiff was then and there greatly injured and embarrassed, in the performance of his part of said agreement) and was prevented from planting and cultivating said premises as well and effectually as he would have done, had the defendant well and truly have performed his part thereof, as in said agreement he had covenanted and agreed to do.” The amendment made at the trial was simply the striking out of the word “ embarrassed” and the insertion in its stead of the word “ damaged.” This clause of the declaration, (so amended) it is insisted by the Counsel for the plaintiff, is to be viewed as an averment by him of an excuse for the nonperformance of the covenant on his part.

There are several objections to such an

interpretation of the clause. In. the first place, coming in as it does immediately after the assignment of the breaches, it can be viewed, and doubtless was originally so intended, only as inducement to the damages to be recovered, and not as an averment to be proved. In this view of the matter, we do not perceive-how the substitution of the word “damaged” for the word “embarrassed” could have any influence in changing the legal effect of the clause.

Again it must be noted that notwithstanding this attempted amendment* the declaration still contained the original averment of full performance by the plaintiff, and it can scarcely be supposed that it was his purpose and design to- make two averments so contradictory and conflicting as “performance” and an excuse for “ non-performance.” But if such were the intention,, it is clear that the declaration would in that case be defective for want of sufficient certainty; and it is well established that in such case, a party’s pleadings will always be construed most strictly against him.

Upon this particular point then embraced in the exception now under consideration, we do not perceive that the case stands otherwise tiran it did, when before us upon the former hearing. Concurring fully, as we do, in the views then expressed upon this point, the important question now arises, whether for this very manifest error of the Court below, we will now reverse the judgment and set aside the verdict of the jury rendered at the last trial ?

To determine that question, two things are to be considered — -first, whether the erroneous instruction complained of was calculated to mislead the jury to the detriment of the defendant; and secondly, whether the jury might and ought, under the issues and the evidence adduced in support of the same, to have given the verdict that they did. In considering the first head, we will proceed to show how far this Court has gone in sustaining the judgments of the Circuit Courts, even when manifest error has been committed in the admission or rejection of evidence and in granting or refusing instructions to the jury.

In the case of Randall vs. Parramore & Smith (1 Fla.

R. 409), it is ruled that, “ when a party has sustained no injury from the rejection of admissible testimony, he cannot avail himself of the mistake to reverse the judgment.” “If the verdict he conformable to the law and evidence, it will not be set aside merely because the Court refused to give instructions which might have been properly given.” “The refusal of the Court to give an instruction, which would not benelit the party asking it, is not error, nor is an erroneous instruction upon an abstract question of law, which is not involved in the decision of the Court, aground for reversing the judgment.” Iu the case of Proctor vs.

Hart (5 Fla. R. 465), it was decided that “ where a charge is given to the jury, which is entirely abstract, or out of the case, so as not to affect it, although the charge he erroneous as a proposition of law, yet this will not constitute a good ground of exception.” “ It is not every irrelevant instruction that will,afford a ground for error. The instruction to he erroneous must be not only irrelevant, hut likely to mislead the jury in the formation of their verdict.” 8 Fla. R., 161, Milton vs. Blackshear.

From these citations of the rulings of this Court, it will be perceived, that in considering an exception to the instruction of the Judge below to warrant this Court in pronouncing a reversal, it is not enough that the instruction should he found to have been improperly given, but it must he made to appear that the jury was mislead, or in other words that the verdict could not have rightly been rendered but for the instruction excepted.

This leads us to the consideration of the second point proposed, viz: “whether the jury might and ought, under the issues and the evidence adduced in support of the same, to have given the verdict that they did.” There were oniy two witnesses who testified as to the per. formalice of the parties under the contract, and as to the amount of the damages sustained by the plaintiff, viz: Levin B. Johnson and Edmund Jones.

The witness Johnson testified very fully as to the faithful performance by the plaintiff of lffs part of the agreement, and also as to the amount of the damage sustained by him in consequence of the non performance of the defendant. In order to understand the bearing of this testimony, it is necessary to premise that the agreement between the parties, out of which this suit arose, was for the making of crop on shares, Hooker obligating himself, amongst other things, to furnish the seeds to be planted, and Johnson to cultivate and gather the crop when made, according to the best of his skill and ability.

The amount of sea island cotton to be planted was thirty-three acres. In answer to the 9th direct interrogatory, the witness says : I know that the defendant furnished cotton seed enough to plant thirty-three acres of land; the said seed was furnished on the farm on the 15th day of April of that year, which was about two months .after the usual time for planting cotton seed in this State. The dry season was so far advanced that there was not sufficient moisture in the land to sprout but very few of the cotton seeds, except about two acres on the lower side of the farm adjoining to a bay-head.

I know that the plaintiff, Johnson, repeatedly urged the defendant, Hooker, to send on the cotton seed sooner. The plaintiff was damaged by the defendant failing to furnish cotton seed in proper time for planting.

The cause of the damage was this, if the defendant had furnished the cotton seed in the usual time for planting cotton seed, the plaintiff would have made six or eight hundred weight to the acre in the seed, on an average, whereas he only made an average of about 250 pounds to tlie acre.” Upon tlie date furnished in this answer, it will be seen that the loss to the plaintiff in the quantity of cotton which he ought to have made, if the cotton seed had been furnished in due time, amounted to about 7,500 lbs. of tlie seed.

In addition to this the witness testifies to the damage sustained in tlie failure to furnish horse feed for the plough team — the absence of one of the hands to be furnished by the defendant for the space of two months, and various other items of loss, which all taken together, we think, might well warrant the jury in giving the verdict that they did, under the instruction asked for by the defendant himself, and uninfluenced by the qualification attached to it by the Court. "We think, then, that thisyirsi error assigned ought to be overruled.

To avoid any misapprehension on the subject, it may be proper to remark that we do not consider this ruling as in conflict with the conclusion arrived at by the Court when this case was previously under consideration. As before stated, the reversal at that time was had upon another ground, as may be seen by reference to the views expressed in the opinion delivered.

In commenting upon this assignment of error, the Court there say : “ As the case will be reversed, for the reasons already stated, permission should be given to amend, as well the declaration as the other pleadings, so as to present the case fully and fairly upon the merits.” The second and last error assigned is in these words, ■“ the Court erred in not g’ranting a new trial on the second cause assigned by defendant, because the deposition of Levin T.

Johnson and the evidence of Edmund Jones did not sustain the plaintiff in the issue raised by the fourth plea.” By reference to the record it will be found that the “ second -cause ” alluded to in this assignment is as follows: “ because by the evidence which was given in the case, the jury should have found for the defendant.” The cause thus stated as a ground for the new trial, is so indefinite that but for the position assumed in the argument of counsel, the Court would be at a loss to perceive the particular point intended to be insisted upon.

From that argument, however, we learn that the objection is, that the record presents no proof that the agreement sued upon was ever in evidence before the jury. The fourth plea alluded to in this assignment is substantially a plea of non est factum,, and it is undoubtedly true that when the execution of the instrument is put in issue by such a pica, the rules of the common law require that the plaintiff shall not only prove the execution but shall also put the instrument in evidence by reading it to the jury, or in some other way.

If the deed is not put in issue by the plea of non est factum, the defendant is understood to admit so much of the deed as is spread upon the record. 1 Arch., N. P., 435 ; 2 Greenleaf on Ev., 191 Our statute dispenses with the proof of execution unless the plea is verified by tbe oath of the party, hut this provi. sion of the statute has never been taken to dispense with the necessity of exhibiting tbe instrument to the jury as evidence in the cause. Thomp. Dig. 331, §4.

In looking into the HU of exception filed in this cause, it does not appear that the instrument sued upon was ever exhibited to the jury, nor indeed is any other of the evidence set out, as it ought to have been. There is simply a reference to the evidence used at the trial, as hearing the attestation of the Judge below that it was so read.

In this reference no allusion is made to the written instrument, but we think that the defendant is estopped from alleging that it was not put ’-n evidence, when it is seen tli.u elm very instruction asked for by him assumes the fact that it had actually been read and was then before tbe jury.

Under these circumstances the Court is disinclined to sustain the second error assigned, and wo are the more inclined to Ibis conclusion in view of the very imperfect manner in which the cause has been presented to us by the record, for, according to the usual practice of the Court, we would'have been justified in dismissing the appeal upon the single ground of a defective bill of exception. It is therefore ordered and adjudged that the judgment of the Circuit Court be affirmed with cost.