
    HOBBS v. HOBBS.
    No. 7639.
    January 17, 1931.
    
      M. L. Felts, for plaintiff in error. J. P. Wilhoit, contra.
   Beck, P. J.

In this suit the plaintiff sought decree for specific performance of a parol contract for sale of land.

Error is assigned upon that portion of the court’s charge wherein the jury were instructed, in substance, that the burden is upon the plaintiff in this ease to establish the contract upon which the plaintiff relies in this suit for specific performance, “so clearly, strongly, and satisfactorily that there will be no reasonable doubt in their minds as to the existence of that contract or the terms thereof,” and that it was for the jury to determine whether or. not under the evidence the contract had been proved; and the jury were then further charged that if'they “further believed that the plaintiff had complied with the terms of that contract,” then he would be entitled to a verdict in his favor. While the charge would have been more complete if the court had instructed the jury in express terms that the burden was on the plaintiff to show by a preponderance of the evidence that he had complied with the terms of the contract in question, nevertheless, in view of the other parts of the charge and under the facts of the case, the .omission to charge further as to the burden of proof was not cause for the grant of a new trial.

In the other special ground of the motion for a new trial it is contended that “the court, nowhere, instructed the jury /that the defendant in this case would be. entitled to a verdict upon the failure of the plaintiff to make out his case.” In view of the entire charge, the failure, of the court so to instruct the jury in express terms was not cause for a new trial, especially in view of the evidence, and of the strong charge given by the court in requiring the plaintiff to establish the contract relied upon by him “so clearly, strongly, and satisfactorily that there will be no reasonable doubt as to the existence of that contract or the terms thereof.”

Judgment affirmed.

All the Justices concur.  