
    David A. Strong v. Arthur Eggert.
    Filed May 5, 1904.
    No. 13,588.
    1-. Verdict: Instructions. A verdict clearly contrary to the instructions of the court should he set aside.
    2. -: Evidence. Evidence examined, and held not to sustain the verdict.
    Error to the district court for Dawes county: William H. Westover, Judge.
    
      Reversed.
    
    
      Allen G. Fisher, for plaintiff-in error.
    
      A. W. Grites, contra.
    
   Letton, C.

This action was originally brought before a justice of the peace in Dawes county by the defendant in error, hereinafter called the plaintiff, who sought to recover from the plaintiff in error, hereinafter called the defendant, the sum of $170.58, for work and labor which he alleged he performed for the defendant at his request. A trial was had and judgment rendered, an appeal taken to the district court where the cause was tried to ¡i jury, and judgment rendered in favor of the plaintiff for the exact amount claimed by him, to ivit, $170.58. Error proceedings have been prosecuted by the defendant to this court. The defendant is engaged in fanning and also to a certain extent in lumbering. In April, 1900, the plaintiff agreed to work for him by the day on his farm, for $1 a day, no time being specified during which fhe contract should run. Afterwards, he worked at the sawmill and lumbering cam]) of the defendant. It appears tliat sometime ■ in August or September, 1900, a verbal agreement was made between the plaintiff and defendant, by AAdiich the defendant agreed to convey to the plaintiff a certain tract of land, upon which there was standing a quantity of saw timber, in payment for which the plaintiff was to allow the defendant to retain $80 then due him for labor, and plaintiff Avas to cut all timber fit for saw purposes over 12 inches in diameter, then standing upon this tract of land. The evidence sIioavs that this lumber camp Avas situated some 5 or 6 miles from the farm of the defendant; that when the plaintiff first moved near the saAvmill, he moved into a house belonging to one Brennan; that, afterwards, some dispute arising between the parties, this house Avas torn down, and he Avas forced to move into a tent AAdiich stood near the sawmill, on the tract of land defendant Avas to convey to him under the oral agreement; and that, afterwards, a house Avas built by the plaintiff, Avith lumber furnished him by the defendant. But his house proved to be erected upon land which was outside of the limits of the tract. After the land Avas surveyed, and it Avas found that it did not belong to defendant, plaintiff again moved into the tent near the sawmill, Avhere he lived until the fall of 1901, Avhen he left the place.

The principal defense is, That a settlement had been had between the parties; and the defendant further sets up a counterclaim for damages in the sum of $800, which he claims he suffered by reason of the failure of plaintiff to cut the timber upon the land. Both the settlement and counterclaim Arere denied by the plaintiff. The defendant brought into court and tendered a deed to the land to plaintiff, to be delivered Avhen he completes the cutting of the timber thereon. The evidence in the case; very largely consists of entries in the books of the plaintiff and defendant, together with the (explanations of tin; same, the principal conflict being with regard to tin; settlement AA'hicb the defendant claims to have made; on November 11, 1900, and as to whether or not the contract for tin purchase of the land was rescinded by defendant. It appears from the testimony that there were about 58,000 feet of saw timber left standing upon the land, at the time the plaintiff left it. The court instructed the jury with reference to the counterclaim: “As to- the counterclaim interposed by the defendant, you are instructed that the burden of proof is upon the defendant; and, before he can recover upon the said counterclaim he must satisfy you by a preponderance of the evidence that he sold and delivered possession to the plaintiff of the land heretofore described; that plaintiff, to pay for the same, was to cut the saw timber as set forth in the said counterclaim, and that he at all times has been ready and willing to make a good and valid deed to the said land, when the plaintiff should comply with his part of said contract. If you believe from the evidence that said contract for the sale of the land Avas made betAveen the parties as alleged in defendant’s ansAver and counterclaim, and that the plaintiff complied Avitli his part of said contract, with the exception of cutting about 58,000 feet of suav timber therefrom, then you are advised that the defendant, upon making a deed to the plaintiff, Avould be entitled to recover from the plaintiff the value, as sIioavu by the evidence, of cutting said 58,000 feet of logs.” The giving of this instruction was excepted to by defendant and is assigned as error. It is urged that this instruction is erroneous, because it omitted the fact that $30 was to be credited to plaintiff as a first payment on the land, and for Ararious other reasons AAdiich it is not necessary to consider, since it is apparent from the verdict that the jury must have found that the defendant failed to prove that he sold and delivered possession of the land, and that he has been ready and Avilling to make a valid deed to the same A\rlien the plaintiff should comply with his part of the contract. There is a sharp conflict in the testimony in regal'd to this matter. While the parties agree that the timber AA'as to be cut in exchange for the, land, yet they disagree as to tin*, time within AA'hich this avus to be done. They further disagree as to whether possession of the land was ever actually taken by plaintiff, and further disagree as to whether or not defendant informed plaintiff that he wanted to use the land himself, and rescinded the contract. Upon this conflicting evidence it is apparent from the verdict that the jury found for the plaintiff and against the defendant- upon the matter of the counterclaim, and this finding being supported by the evidence will not be disturbed. Hence, the defendant could not have been prejudiced by the omission from this instruction of the matters of which he complains.

It is further assigned that the verdict is not sustained by the evidence and is contrary to the instructions of the court. The jury were properly instructed as to the defense of settlement. It appears from the evidence of both parties that a settlement was had between them upon the 14th day of September, 1900, by which $30 Avas credited to plaintiff upon the contract for the sale of the land, and $10 Avas found to be still due and OAving to him. Accepting the testimony of plaintiff as true in regard to the labor that he performed after the 14th day of September, 1900, and giving him credit for the $40 still in the hands of Strong, the evidence fails to sIioav that the defendant oaycs him the amount found due by the verdict. It is apparent that the jury disregarded the settlement, entirely, when they gave the plaintiff a verdict for the full amount claimed.

We doubt Arery much AAiiether the most expert bookkeeper could arrive at any clear or definite conclusion from the defendant's books, as to AA'hat credits he Avas entitled to. After our examination of the defendant’s bookkeeping, Ave do not Avonder that the jury entirely disregarded all his entries and his oral testimony, as to payments made by him. Apparently, being unable to arrive at any definite conclusion from his books or his testimony, as (o AAinvt credit, he should lmve, the jury gave the plaintiff all he asked for, by Avay of penalty for the defendant’s carelessness, Such a verdict can not stand. Under the instruction of the court, the jury should have taken into consideration the settlement of September 14, 1900, and given Eggert credit only for what he earned after that time, in addition to the amount then due him. For the failure of the jury to follow the instruction of the court with reference' to settlement, and the verdict being in excess of the amount shown by the testimony to be due the plaintiff, the case should be reversed.

Ames and Oldham, 00., concur.

By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and cause remanded for further proceedings.

Reversed.  