
    [No. 19614.
    Department Two.
    February 1, 1926.]
    Mollie B. Farley, Respondent, v. Fidelity Rent & Collection Company, Appellant. 
      
    
    
       Trial (118%) — Custody and Deliberations op Jury- — Taking Papers to Jury Room — Notations on Instructions. Though not commended as good practice, it is not prejudicial error for the court to send the written instructions to the jury room without eradicating the notations of authorities intended for the benefit of the trial court.
    
       Trial (89) — Instructions—Inconsistent or Contradictory Instructions. Error cannot be assigned oh a contradictory and erroneous statement of law, where, from more elaborate statements immediately preceding and following, it could have had no prejudicial effect.
    
       Trial (93) — Instructions—Application to Pleadings and Case. Where throughout the trial the term “general agency” had been used as expressive of a certain situation, it is not prejudicially erroneous to use the same expression in the instructions, where the jury must have understood to what the phrase referred.
    Appeal from, a judgment of the superior court for Pierce county, Card, J.-, entered March 9, 1925, upon the verdict of a jury rendered in favor of the plaintiff, in an action for money had and received.
    Affirmed.
    
      Anthony M. Arntson, for appellant.
    
      Ellis, Fletcher <& Evans, for respondent.
    
      
      Reported in 242 Pac. 1097.
    
   Mackintosh, J.

The complaint charges that the appellant was acting as the respondent’s agent in caring for certain properties, collection of rents therefrom and making disbursements.in relation thereto, and that there was due and owing to the respondent, on account of rent and moneys collected as her agent, over and above the commission to which the appellant was entitled, the sum of $258.88, that demand had been made for that amount, but that the appellant had neglected and refused to pay it, and concluded with a prayer for judgment in that amount.

The appellant’s answer admitted that it was acting as agent for the respondent, and denied that a balance was due the respondent; and, as an affirmative defense and counterclaim, alleged that there was a balance due the appellant in the sum of $156.12, arising from the fact that the respondent had authorized and employed the appellant to secure a tenant for certain premises described; that the appellant had secured a tenant under a three-vear lease, that the tenant was accepted by respondent and the lease entered into, and that, at the usual and customary rate, the commission earned for securing such a tenant, and unpaid, would amount to $415; that demand had been made for the payment of this commission, which had been refused. Bespond-ent replied to the affirmative matter, denying that there had ever been any contract or agreement in regard to the lease.

On these pleadings, the case went to trial before a jury, which returned a verdict in favor of the respondent for the sum of $258.88. The appellant claims that the evidence was insufficient to justify the verdict, and that the verdict was against the law.

Without reciting the evidence presented by the parties showing the transactions between them, it will suffice to say, that there was enough evidence, presented on behalf of the respondent, to sustain the jury’s finding that the appellant was entitled to no commission for having secured a lessee of a portion of respondent’s property.

Another allegation of error is that, in submitting the written instructions to the jury, the court neglected to remove therefrom notations of legal authorities appearing at the end thereof. This notation of authorities at the bottom of instructions does not constitute reversible error. They were evidently placed-there for the benefit of the trial court, and it was by oversight that the court neglected to- eradicate them before sending the instructions to the jury. This was not good practice, but was not an error which is sufficiently prejudicial to justify a new trial. Herzog v. Campbell, 47 Neb. 370, 66 N. W. 424; State v. Sage, 22 Idaho 489, 126 Pac. 403, Ann. Cas. 1914B 251.

Another error assigned is in one of the instructions, in which the court was detailing to the jury the manner in which the respondent might be bound to pay a commission, charging that the commission could only be collected if there had been a contract or agreement to pay for the services rendered, and that an agreement could arise from an express understanding between the parties, or could be established by circumstances which would show a mutual intention to contract in regard to commission. The court then said: “If the evidence fails to show a meeting of the minds of the parties on the terms of this claimed contract, then no contract would exist, and defendant’s counterclaim should be disallowed.” Standing by itself, this sentence is contradictory to the language preceding it in the instruction, and is an erroneous statement of the law. However, as we view it, it could not be prejudicial, in view of both what preceded it and what immediately followed it. After making this statement, the court went on to elaborate upon the liability of the respondent, if the jury should find from the evidence that the appellant rendered services at her request, although nothing was said as to compensation for such services. The instructions, taken as a whole, clearly defined to the jury the circumstances under which the respondent would be liable, and negative the possibility of the erroneous statement having had any prejudicial effect.

Another instruction is objected to, for the reason that it contains a statement in regard to general agency, the court saying that, whether the respondent was liable for a commission, in the absence of an express agreement, depends upon the relations between the parties and the circumstances surrounding the transaction, and that if the jury found from the evidence that

“. . . the defendant was the general agent of the plaintiff in looking after her properties, procuring tenants, collecting rentals for a charge of five per cent commission on moneys and rentals collected by defendant for her, and that, in regard to procuring a tenant and a term lease for this A Street property, there was no new or independent express agreement or understanding between them, and that the circumstances were not such as to show a new contract or agreement regarding this matter, independent of or in addition to defendant’s duties and obligations under its general agency, hut that in the matter of procuring a tenant for this property the plaintiff actually believed, and her dealings with defendant and the circumstances surrounding this transaction justified her in believing, that no new arrangement was entered into or intended, hut that this service was being performed by the defendant under its general agency, and that no charge or commission other than the charge of five per cent on moneys and rentals collected and to he collected by defendant was to he made, or was contemplated, then you should disallow this claim.”

The objection to this instruction is, that it is based upon the theory of the existence of a general agency, whereas the evidence shows that the appellant did not have control of all of the respondent’s property. It may he true that the term used was not the exact one which expressed the relationship between the two parties to this litigation, hut it was used in a broad sense, as referring to an agent who had all the powers and duties which the testimony showed the appellant possessed. Throughout the testimony of the officers and employees of the appellant, the phrases “general agents” and “general agency” were frequently used, as expressive of the situation, and the jury, in the light of this evidence, must have understood the instruction as referring to what the witnesses had testified to; and as typical of this testimony the following extract from the testimony of the secretary of the appellant may be quoted:

“Q. In other words, if she had left the property in your hands this charge would never have been thought of? A. If she had left the property in our hands this charge would have been greater than it is now. Q. This property would have gone in under the general agency agreement? A. Yes, sir, it would have gone in under the general agency agreement.”

When an expression, possibly not adequately accurate, has been used throughout the trial as expressive of a certain situation, an instruction adopting that same expression cannot be held to be prejudicially erroneous. The court, counsel, parties and the jury must of necessity have understood to what the phrase referred.

There being no error, the judgment is affirmed.

Tolman, C. J., Main, Mitchell, and Parker, JJ., concur.  