Morehouse v. Remson. agreement was entered into between them in substance, and that that which was charged in the complaint in fact happened in substance. That, I think, it is necessary for you to find. Mr. Morehouse has detailed to you the agreement which he claims to have made with Mr. Remson. I charge you that, if you find that the agreement which he claims to have made with Mr. Remson he, in fact, did make, he has proved the allegations of his complaint." It is difficult to conceive upon what grounds the plaintiff can complain of such a charge even as these extracts show, and if we were to take the entire charge it would be still more difficult to find fault with it. The only restriction in the charge is, that the plaintiff cannot go outside of the case, as the substance of the complaint limits it, and as the evidence may limit it. The plaintiff was relieved by the court of all danger from any variance that might be claimed by the direct instruction to the jury that if the plaintiff had proved that he made such an agreement as he claimed on the trial to have made he had proved the allegations of the complaint. How could the plaintiff expect to win his case if he failed as to these most reasonable requirements. But the plaintiff by his fourth assignment of error claims to have been aggrieved because the court omitted to charge the jury in accordance with the three special requests there mentioned, namely: "(a.) That even if the agreement were as stated by the defendant, still, if the plaintiff procured the purchaser, and the purchaser and the seller dealt between themselves for ten thousand dollars, the plaintiff was entitled to his commission. "(b.) That the plaintiff was entitled to a verdict if the jury should find that he substantially effected the sale by procuring and introducing a purchaser to whom the defendant sold the land. "(c.) That the plaintiff was entitled to a verdict if the jury should find the agreement in the first instance to have been that the plaintiff should have no commission unless he got more than ten thousand dollars for the farm, if the jury Morehouse v. Remson. should also find that the plaintiff consented to the sale for ten thousand dollars, and also that the defendant thereupon renewed his special promise to pay the commission." The first request was manifestly incorrect. The agreement as claimed by the defendant excluded all commissions to be paid by him, while at the same time the defendant conceded just what the request states, that the plaintiff procured the purchaser and that the purchaser and defendant finally dealt between themselves for ten thousand dollars. The controlling question was whether the plaintiff acted under the promise or inducements held out by the plaintiff or as his agent. The agreement which the request concedes to be true shows that he did not. All that this request amounts to is that the defendant's claim as to the agreement was no defense. As to the second of these requests, there was no question upon the trial that made it necessary. It was conceded that if the agreement was as the plaintiff claimed, his action under it was a sufficient performance to entitle him to his commission. The court gave the plaintiff the full benefit of this point, by making his case turn on the mere proof of the agreement as he claimed it. The third request is based on the assumption that there were two agreements between the parties-the principal one just such as the defendant claimed, that the plaintiff was to have no commissions, and the other, a sort of satellite revolving around the principal agreement, ready at the critical moment to fall upon and destroy the latter, and establish an agreement whereby the plaintiff was entitled to his com mission. There was nothing in the case that called for this strange splitting of the evidence and of the contracts. It is true that the plaintiff, having testified to the agreement entitling him to commissions, stated in that connection that, just before and after the agreement was consummated at the house of the plaintiff, the defendant said to him that as soon as the business was finished and he got his money he would make it entirely satisfactory to the plaintiff for his services and Morehouse v. Remson. would pay him. But this was stated to re-enforce the agreement and recognize it as the plaintiff claimed it, and was not intended as another agreement, contrary to the one just made. If the jury had believed the plaintiff's version of the agreement as made, they would have believed this statement as to the defendant's recognition of it, and on the contrary, if they believed the defendant and found such an agreement as he testified to, they could not have believed this part of the plaintiff's testimony, rejecting the rest. The case shows that there was one and only one definite agreement claimed on the part of the plaintiff, and also one and only one on the part of the defendant, and these two agreements were inconsistent with each other and could not both be true. It was certain that the party who established his agreement in the convictions of the jury must prevail. There was no ground for an implied agreement or any essential modification of the agreement. Both the pleadings and the evidence on the part of the plaintiff made the case turn on the proof of this one definite agreement. In some cases the evidence presents such varying aspects as that different conclusions of fact may be legitimately reached, and where such is the case, and the pleadings admit of it, the court may with propriety be required to charge the jury in the alternative, or in reference to different contingencies of fact that may control the case. But in the case at bar no basis was laid for such a claim and it was properly ignored. In the course of his argument before the court and jury the plaintiff's counsel read the findings of fact and the opinions of judges in sundry cases mentioned in the finding. In the course of the charge to the jury the court had occasion to instruct them as to several matters which were not within their province to decide, and among them reference was made to the reading of these cases in their hearing, and the court said—“ Anything which you have heard read from law books is of no concern to you. It must not enter into your consideration in any way. It must not influence you in the Morehouse v. Remson. slightest. That is a matter solely between the parties and the court." So long as our statute (section 1101) makes it the duty of the court to "decide all issues of law, and all questions. of law arising in the trial of any issue of fact," so long must we not only approve but commend the instructions complained of. And if this recognition and enforcement of the statutory rule should have the effect to call attention to an unseemly practice occasionally witnessed in our courts, when the zeal of counsel, unconsciously perhaps, prompts them to virtually appeal from the decision of the court to the jury in a pure matter of law, it will, we trust, tend to promote dignity and justice in judicial proceedings. The 6th, 7th, 8th, and 9th assignments of error only remain to be considered, but they may be quickly disposed of, for they belong to one class and embrace only matters of comment and "observations on the evidence" permitted by statute and within the fair discretion of the trial judge, and which therefore are not reviewable. Of the several matters referred to in these assignments of error the sixth seems most relied upon by the counsel for the plaintiff to show a real grievance. The court, alluding to the claim of counsel that Mr. Remson was mistaken because he was contradicted by three witnesses, one of whom was a Mr. Bassett, tersely remarked, "that it was no worse for Mr. Remson to be contradicted by Mr. Bassett, than it is for Mr. Bassett to be contradicted by Mr. Remson." This, as between the two, other things being equal, was strictly true, but no account was taken of the other two witnesses, and if it had been left by the court in that position, there would have been some ground for complaint. It was of course a matter exclusively for the jury, as the court immediately stated, and said to them: "You will give that claim such consideration as you think it ought to have, You have seen the witnesses upon the stand. You have heard their testimony. You will decide between them." This committal of the whole matter to the jury was clear, full and emphatic, and we think it furnished a sufficient antidote for. VOL. LIX.-26 State's Attorney v. Selectmen of Branford. whatever mischief (if any) might otherwise have been occasioned by the first remark. As to all the other assignments of error referred to, the answer to be made is so obvious as to require no discussion. There was no error in the rulings complained of. In this opinion the other judges concurred. 59 402 61 575 59 402 68 22 TILTON E. DOOLITTLE, STATE'S ATTORNEY, v8. THE New Haven and Fairfield Cos., June T., 1890. ANDREWS, C. J., CARPEN- The statute, (Gen. Statutes, § 3483,) which authorizes the railroad commis- While the railroad commissioners cannot interfere with the general power The alteration of highways for such a purpose is not a matter of private Where proceedings by mandamus against municipal officers have been be |