Opinion
No. 38462.
October 27, 1952.
1. Contracts — new agreement — consideration.
Any new agreement between the parties to an existing executory contract made in modification or substitution of that contract and bilateral in benefit or burden, has, like the primary contract, a sufficient consideration in the mutual advantages or obligations which it confers or imposes.
2. Contracts — new agreement — consideration.
Where the original contract between the employer and employee as a gin operator was from week to week, a sufficient consideration for a new or substituted contract on a yearly basis was the mutual advantages that the employer would have an operator already on hand when the ginning season opened, and that the employee would have continued employment when the season closed.
3. Trial — preponderance of the evidence.
In ordinary civil actions issues are determined in accordance with the preponderance or weight of the credible evidence, and convincing proof or proof to a certainty or beyond a reasonable doubt is not required.
4. Appeal — Rule 11 — when erroneous instruction will not require a reversal.
Although a granted instruction was erroneous as to the required quantum of proof, there will be no reversal if upon an examination of the entire record the Court is unable to say that the judgment has resulted in a miscarriage of justice or that a different result would probably be reached upon another trial. Rule 11, Supreme Court.
5. Landlord and tenant — unlawful entry and detainer — rent not claimed, waived.
Where in an action of unlawful entry and detainer for the possession of a house the landlord made no claim for rent until after verdict and requested no instruction as to rent, a motion made after trial and verdict for the allowance of double rent was properly overruled because (1) the advantage obtained by the landlord in the trial by the omission to claim rent was sufficient to constitute a waiver of the rent, and (2) if the landlord desired a recovery of rent it should have requested an instruction to that effect.
6. Instructions — request therefor necessary.
Trial courts in this State cannot instruct a jury without a request therefor.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Bolivar County; E.H. GREEN, Judge.
Smith Jones, for appellant.
I. A contract, positive and certain in its terms, may not be modified or changed by subsequent oral agreement, unless there is a valid and sufficient consideration therefor. 12 Am. Jur., Contracts, Sec. 427, p. 1005; Thompson v. Wynne, 127 Miss. 733, 90 So. 482; Prichard v. Hall, 175 Miss. 588, 167 So. 629.
II. When the evidence in any case is sharply conflicting, the Supreme Court will examine carefully all instructions to determine whether they are erroneous. Bounds v. Watts, 159 Miss. 307, 131 So. 803; Gooch v. State, 199 Miss. 280, 24 So.2d 736; Long v. State, 152 Miss. 23.
III. Right of litigant, especially where evidence is sharply conflicting, to have jury properly instructed on burden of proof is a valuable one which will be protected by appellate Court, and in such case an instruction which tells the jury that the burden of proof rests on plaintiff to prove case "by a preponderance of clear, convincing and credible evidence * * *," and if plaintiff "has failed to meet that burden, then it is your sworn duty to find for" defendant is erroneous requiring reversal of cause. Choate v. Pierce, 126 Miss. 209, 88 So. 627; Crawford v. City of Meridian, 174 Miss. 875, 165 So. 612; Patton v. Nelson, (Miss.), 51 So.2d 752; McCain v. Cochran, 153 Miss. 237, 120 So. 823; Nabors v. Long, (Ala.), 92 So. 444.
IV. Where gin company having burden of proof, proved contract of employment whereby gin employee was employed on week to week basis and could be discharged at any time and this contract was admitted by employee suing for salary for remainder of year on ground that contract had been modified by making contract from year to year a prima facie case was made and burden of proof shifted to employee to prove the affirmative defense of modification or changed contract, and instruction on behalf of employee telling the jury that gin must prove its case "as defined in the other instructions, by a preponderance of the clear, convincing and credible evidence" is erroneous and requires a reversal of the case. Harris v. Sims, 155 Miss. 207, 124 So. 325; Georgetown Mercantile Co. v. Steen, 155 Miss. 719, 125 So. 120.
V. An instruction which amounts to a peremptory instruction on matter about which the evidence is in conflict is prejudicially erroneous. Boothe v. Teche Lines, 165 Miss. 343, 143 So. 418; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8.
VI. The liability of a tenant holding over after notice to quit is absolute and in unlawful entry and detainer action where tenant admitted that rental value is $40.00 per month, and that written notice to quit was given but only defense was that rental agreement was by the year instead of by the week as claimed by landlord and jury found for landlord on this issue, judgment should include double rent for period premises were occupied after notice given. Secs. 947, 1197, Code 1942; Wetherall v. Brown, 113 Miss. 887, 74 So. 765; Firestone Tire Rubber Co. v. Fried, 202 Miss. 370, 31 So.2d 116; Stollenwreck v. Eure, 119 Miss. 854, 81 So. 594, 120 Miss. 233, 82 So. 68; Gulley v. Mayo, 191 Miss. 143, 1 So.2d 800; Stovall v. Gardner, 203 Miss. 527, 36 So.2d 162.
Alexander, Feduccia Alexander, for appellee.
A. Where evidence is conflicting, which would support a verdict of the jury either way, the findings of fact by the jury will not be disturbed by the appellate Court. Trotter v. Staggers, 28 So.2d 237-238; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650-651; Saenger Theatre Corp., Inc. v. Herndon, 180 Miss. 791, 178 So. 86-87; Frederick Smith Enterprise Co. v. Lucas, 36 So.2d 812-814; Atlanta Stove Works v. Hamilton, 83 Miss. 704, 35 So. 763.
B. Answer to contentions in appellant's brief as therein stated.
Proposition I. Contract modified or changed by a subsequent agreement not valid without consideration. 12 Am. Jur., Contracts, Sec. 411, p. 989; McArthur v. Fillingame, 186 So. 828-829; Miller v. Bank of Holly Springs, 95 So. 129-130; McDonnell Const. Co. v. Delta Pine Land Co., 141 So. 757-758; Smaller War Plants Corp. v. Queen City Lbr. Co., 27 So.2d 531-534; Business Women's Holding Co. v. Farmers' Mechanics' Savings Bank, 259 N.W. 812, 99 A.L.R. 579.
Proposition II. As to the Supreme Court examining all instructions where the evidence is conflicting.
When the Supreme Court examines both the instructions for the gin and for Beck, there is not the slightest possibility that the jury was misled in any manner.
The appellant cites about ten cases but does not state what point he intends to bring out by these cases, and it is interesting to note that all cases cited are criminal cases.
Proposition III. As to the instruction for Beck that the gin must prove its case "by a preponderance of clear, convincing and credible evidence * * *." 53 Am. Jur., Trial, Sec. 744, p. 555; Chambers, et al. v. Meaut, 66 Miss. 625, 6 So. 465; St. Louis-San Francisco Ry. Co. v. Dyson, 43 So.2d 95; Gregory, et al. v. Williams, (Miss.), 35 So.2d 451, 453, 454.
Proposition IV. As to contention by gin that it had made a prima facie case on the salary suit and the burden of proof shifted to Beck to prove affirmative defense and instruction for Beck that gin must prove its case as defined in the other instructions by a preponderance of clear, convincing and credible evidence is erroneous. Alabama V. Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703-705.
Proposition V. As to whether or not instruction on page 426 of the record amounted to a peremptory instruction. Ross v. Fair, et al., 110 So. 841-842; Evans Motor Freight Lines v. Fleming, 185 So. 821-824; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65-66; Yorkshire Ins. Co. v. Brewer, 166 So. 361; Neely, et al. v. City of Charleston, 37 So.2d 495-496.
Proposition VI. As to whether or not the court should include double rent in its judgment where the jury found for the gin the possession of the house under the facts above related. Burr, et al. v. Johnson, (Miss.), 37 So.2d 747-748; 52 C.J.S., Landlord and Tenant, Sec. 549, p. 361; Sherrill v. Stewart, 21 So.2d 11-12; Sec. 1517, Code 1942; Humphries County v. Washington County, (Miss.), 90 So. 710; Masonite Corp. v. Lochridge, (Miss.), 140 So. 223-227; Y. M.V. Ry. Co. v. Messina, (Miss.), 67 So. 963-965; Sewell v. Lake Charles Planing Mill, 253 S.W. 872; Berkshire Life Ins. Co. v. Goldstein, 82 S.W.2d 501.
Appellant brought an action of unlawful entry and detainer against appellee for recovery of possession of a dwelling house and from a judgment in its favor appellee appealed to the circuit court. While that cause was pending appellee brought suit against appellant in the circuit court for recovery of a balance of $500.00 due on his salary under an alleged contract of employment for one year under the terms of which it was claimed by appellee that appellant was to furnish him the dwelling house aforesaid and pay him a salary of $50.00 per week for his services as operator of appellant's cotton gin. By agreement of the parties the two causes were consolidated for trial in the circuit court with appellant "being made the plaintiff in both cases and proceeding as plaintiff ordinarily proceeds, and with the same burden."
In 1948 appellee was employed by appellant under an oral agreement in the capacity mentioned on a weekly basis and entered upon the discharge of his duties on July 5, 1948. Under this agreement appellant was to furnish him the dwelling house and pay him a salary of $33.00 per week until the ginning season started and his weekly salary was then to be $50.00. Appellee was to work under the orders and direction of D.F. Lifer who was manager of the gin as well as Secretary and Treasurer of appellant. Appellee established with considerable corroboration that in a short time after this employment he had an oral agreement with Lifer whereby his employment was to run for a period of one year ending July 5, 1949; that about the expiration of that term there was another oral agreement whereby he was employed for a period of another year ending July 5, 1950, at a straight salary of $50.00 per week, with the dwelling house furnished to him; and that about the expiration of that term there was another oral agreement whereby he was employed on the same basis for another year ending July 5, 1951. Appellee was discharged on January 2, 1951, after he had entered upon his duties for that day. Appellant notified him that possession of the dwelling house was desired but agreed that he might occupy it for the remainder of that month. Upon his failure to remove from the premises at the end of the month, the unlawful entry and detainer suit was instituted. Appellee sought other employment which he finally obtained on March 5, 1951, and brought suit for the salary due him up to that time.
On sharply conflicting testimony the issue was submitted to the jury on the question whether there was such a contract as above mentioned. The jury returned a verdict in favor of appellant for possession of the dwelling house but allowed no rent therefor, and it also returned a separate verdict in favor of appellee in the salary suit for the sum of $400.00 from which this appeal is prosecuted.
Appellant's first contention is that there was no consideration for the alleged supplemental contract whereby appellee claims to have been employed for a year and that for this reason the supplemental contract was void. We do not agree with that contention. In 12 Am. Jur. p. 989, Contracts, Sec. 411, it is said: "Although some authorities state that the consideration for the original contract is sufficient to support a substituted contract and that new consideration is unnecessary, most authorities support the rule that a new consideration is essential to the substitution of one contract for another. A contract may be superseded by another contract even though the new contract consists merely of mutual promises. The mutual agreement of the parties to a bilateral executory contract, before a breach thereof, to abrogate and discharge it and to substitute in its stead a new contract conferring advantages or imposing new burdens on both constitutes a sufficient consideration to support the substituted contract." And in 12 Am. Jur. p. 960, Contracts, Sec. 412, it is said: (Hn 1) "Any new agreement between the parties to an existing executory contract, made in substitution or modification of the elder compact and bilateral in benefit or burden, has, like the primary contract, a sufficient consideration in the mutual advantages or obligations which it confers or imposes." It is in evidence that during the ginning season, which usually lasts approximately four months of the year, the gin operator is compelled to work unusually long hours, sometimes as much as twenty-four hours a day without rest, while during the remaining months the hours of work are not long nor the work burdensome. It is further in evidence that as a result of this situation gin operators would frequently quit their employment at the beginning of the ginning season and that appellant had had trouble in this respect. It was therefore to appellant's advantage to bind its gin operator to a yearly contract so as to obviate the trouble and difficulty of having to find a new gin operator at the beginning of or during the ginning season. It is also in evidence that appellee had a son in high school and another in college and he was desirous of obtaining employment by the year so that he might be assured that his services would not be dispensed with at the close of the ginning season which falls during the middle of the school term. (Hn 2) These mutual advantages were in our opinion a sufficient consideration for the making of a contract of employment on a yearly basis, in lieu of the original employment from week to week.
(Hn 3) Complaint is next made of an instruction obtained by appellee to the effect that appellant must prove its case "by a preponderance of clear, convincing and credible evidence." This instruction is erroneous. It announces the rule as to burden of proof in cases where fraud is alleged, but it goes beyond the requirement in ordinary civil actions. In 20 Am. Jur. pp. 1099-1100, Evidence, Section 1248, it is said: "There is no doctrine of the law settled more firmly than the rule which authorizes issues of fact in civil cases to be determined in accordance with the preponderance or weight of the evidence. . . . Proof beyond a doubt is not necessary in such an action; nor is certainty or convincing proof ordinarily required." And in 20 Am. Jur. p. 1101, Evidence, Sec. 1250, it is said: "The burden of proof requires the party carrying it to prove to the jury the fact upon which his case or affirmative defense depends, by a preponderance or greater weight of the credible evidence. . . . There is a conflict of authority on the question of whether a preponderance of the evidence requires the jury to be convinced of the truth of the controlling evidence. According to some courts, while the verdict may be based on a preponderance of the evidence, yet, to be sufficient, it must reasonably satisfy the minds of the jurors. However, the general rule would seem to be that a party is not required to establish a fact to the satisfaction of the jury or to present evidence sufficient to `convince their minds' of any fact necessary to be shown. Cases upholding this rule take the view that the jury deals only with probabilities, and a greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts." To substantially the same effect is 53 Am. Jur. pp. 553-558, Trial, Secs. 742-746, and 32 C.J.S. pp. 1047-1049, Evidence, Sec. 1020.
(Hn 4) Having determined that the instruction under consideration is erroneous and should not have been granted by the trial court, we are brought to a consideration of Rule 11 of this Court which provides: "No judgment shall be reversed on the ground of misdirection to the jury . . . unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice." We have carefully considered the voluminous record in this case and we are unable to say that the judgment has resulted in a miscarriage of justice, or that a different result would probably be reached upon another trial, and, while we disapprove the quoted instruction, particularly in the use of the word "convincing", and warn against its future use, we have reached the conclusion that the error therein is not so prejudicial as to require a reversal.
(Hn 5) After the verdict of the jury which found for appellant as to possession of the house but awarded no rent therefor, appellant filed a motion for entry of a judgment in its favor for double rent. This motion was overruled by the trial court, which action is assigned as error. Appellant throughout the trial did not ask for double rent; it obtained instructions which submitted to the jury the question of possession of the house but made no mention of either single rent or double rent. It made no claim for any rent at all until after the trial and verdict. Thereby it obtained a distinct advantage in the presentation of its case to the jury, and such an advantage was, in our opinion, sufficient to constitute a waiver of its claim for rent. Section 1197, Code of 1942, provides that on appeal in an unlawful entry and detainer action "The plaintiff may claim for all arrears of rent due at the time of such trial" and that the court shall cause judgment to be entered "for the amount found to be due." Appellant was entitled to claim rent at the trial but it did not do so. The verdict did not find any amount of rent to be due, which is entirely consistent with appellant's failure to claim rent. (Hn 6) Trial courts in this state cannot instruct a jury without a request therefor. Masonite Corporation v. Lochridge, 163 Miss. 364, 140 So. 223. If appellant desired a recovery of rent it should have requested an instruction to that effect. If appellee was entitled to recover on his salary claim, there is no dispute that the amount thereof was $500.00. It could well be that the jury may have found that the reasonable rental value of the house for the period it was occupied after January 31, 1951, was $100.00 and that they accordingly gave appellant credit for that amount by reducing appellee's recovery to $400.00. There is no other plausible reason for the verdict for the smaller amount, and we do not think the trial court was in error in overruling the motion for a judgment for rent after the conclusion of the trial.
Appellant also contends that one of appellee's instructions was in effect a peremptory charge, but upon a careful examination thereof we find no merit in this contention. The judgment is accordingly affirmed.
Affirmed.
Roberds, P.J., and Alexander, Kyle and Holmes, JJ., concur.