
    Keller v. Holland’s Adm’r.
    
      Action for Breach of Special Contract.
    
    1. Abstract charge. — A charge which is not applicable, to the evidence, or which assumes as proved a fact or facts of which there is no evidence whatever, or assumes that there is evidence tending to prove facts of which there is no evidence whatever, is abstract, and properly refused for that reason.
    Appeal from the Circuit Court of Lee.
    Tried before the Hon. L. B. Strange.
    This action was brought by O. S. Holland, against Daniel J. Keller, to recover damages for the breach of a special contract, by which tbe plaintiff undertook to assist the defendant in effecting sales of a certain patent right for improved apparatus used iu tbe manufacture of carbureted hydrogen gas; and was commenced on tbe 28thFebruary, 1874. Tbe opinion renders it unnecessary to state the facts at length. Tbe refusal of a charge asked by tbe defendant is tbe only matter assigned as error.
    J. M. Chilton, and J. M. Russell, for appellant.
    W. H. Barnes, contra.
    
   BRICKELL, O. J.

The only error assigned is, tbe refusal of the Circuit Court to give tbe charge requested by tbe appellant. A charge not applicable to tbe evidence, or which assumes as proved a fact or facts of which there is no evidence, or assumes there is evidence tending to prove such facts, when there is a total absence of evidence in reference to them, ought not to be given. It would bave an immediate tendency to confuse and mislead tbe jury, distracting their attention from tbe matter which they are to try, and render trials almost interminable. We have carefully examined the bill of exceptions, and bave not discovered any evidence having a tendency to prove tbe tacts on wbicb tbe charge is based. Whether it asserts tbe law correctly or not, is immaterial. It was properly refused.

Tbe judgment must be affirmed.  