Dick v. Milligan , 4 Sadler 26 ( 1886 )

Opinion by

Mr. Justice Trunkey:

In the defendant’s argument, after stating the contract and performance thereof as alleged by himself, it is said: “The plaintiff in error now contends that the receipt for $7,012.35 was signed by Mrs. Milligan on the 21th day of May, 1812, in the consummation or execution of the arrangement or contract which was entered into by the parties and as above set forth.

On the other hand, Mrs. Milligan claims that she signed the receipt for $1,012.35 on the faith of M. M. Dick’s promise to ■convey purpart “A” to her; and he having failed to fulfil his promise, she brings suit for the difference between the face of the receipt and the face of the recognizance which Dick receipted to her. The manner in which this receipt was procured was the issue of fact which should have been submitted to the jury.

That is a fair statement of the question of fact on the determination of which depended the plaintiff’s right to recover, and we think it was properly submitted. In the general charge the learned judge stated the contention of each party at length; instructed the jury that if the arrangement was made as alleged by the plaintiff, and she gave the receipt in pursuance thereof, the defendant would be required either to give her the land or pay her back her money. ' “In the absence of any contract, the only question would he whether the plaintiff received her share of the purchase money; and the fact being conceded that she was not paid the money, the plaintiff’s right to recover, in such case, would be established. . . . But if the plaintiff, at the time she gave the receipt for $7,012.35, did so with the full, conscious, and intelligent belief that she had fully received her share out of the whole land, less a fraction in the number of acres and the difference in the appraised value, and this was the moving cause which induced her to sign the receipt; and if, without regard to any promises made by Major Dick, she gave the receipt which represented the money, she cannot now complain of what she voluntarily did. ... In plain terms: she would not he bound by this previous parol contract . between Major Dick and herself. But if, at the time she paid the money, she voluntarily gave up to the guardian of her nephew that share of the purchase money with a full understanding of what she was doing — she was of age and could act for herself.”

Thus were the jury instructed with reference to the fact in dispute, and they were told that the instruction was not inconsistent with the answers to the points presented by counsel. This was equivalent to charging that if they found the contract as alleged by the plaintiff she was entitled to recover; otherAvise, the verdict should be for the defendant. And the an-SAvers to the points were not to be understood as inconsistent Avith the instruction touching their disposition of the controlling fact in the case.

The affirmance of the plaintiff’s first point was put “on the ground that a parol contract cannot be set up to affect title to land.” In the charge the same thing Avas said in substance, but it was also said, in effect, that though the plaintiff Avas not bound by such parol contract, if made, yet if she voluntarily gave up her share of the purchase money she could not complain. Had the jury believed there was a parol contract made and performed as alleged by Dick, and that Mrs. Milligan gave the receipt in pursuance thereof, under the charge the verdict would have been for the defendant. True, the refusal of the defendant’s first point is inconsistent with the instruction in the charge, but we think it plain that it did not mislead the jury from proper consideration of the real question.

There was no error in the affirmance of the plaintiff’s fourth point. The amount of money belonging to each party to the proceeding in partition is shown by the record. The plaintiff gave a receipt for the whole of her share to the defendant. He admits he did not pay the money, and sets np a contract which, if made, relieved him from the payment. The burden was on him to establish that contract by clear and satisfactory evidence.

Judgment aiSrmed.