#### Richardson, Respondent, vs. Babcock, Appellant.

*September 8*—

September *29, 1903.*

*Instructions to jury: Exceptions: Gredibility of witnesses: Evidence: Burden of proof: Conversation betioeen parties.*

1. A general exception to the whole of a certain part of the charge to the jury is unavailing if any distinct and independent proposition covered by such exception is correct.

2. The jury may properly be instructed that if they believe that a witness has wilfully and knowingly sworn falsely as to any material matter in issue they are at liberty to disregard his entile testimony, except so far as corroborated by other credible evidence.

3. If an instruction to the jury is so worded that it may reasonably receive two different interpretations, one correct and one incorrect, it must be held erroneous and prejudicial.

4. An instruction to the effect that the jury are not bound to believe everything a witness testifies to, provided they believe that he is mistaken or has wilfully falsified as to one matter, is criticised.

5. In a colloquy between court and counsel at the close of the charge, the court assented to the proposition that plaintiff must recover, if at all, upon the preponderance of evidence, and further instructed the jury that the burden of proof was upon plaintiff to establish the contract sued on as he claimed it to be, by the weight of the testimony. *Held,*not erroneous, in the absence of a request for more specific instructions.

6. Where an entire conversation between parties related to the subject matter of the controversy, though a part thereof was somewhat remote in its bearing, it was all properly admitted in evidence.

Appeal from a judgment of tbe circuit court for Green county: B. E. .DuNwiddie, Circuit Judge.

*Affirmed.*

*142This is an action by a broker to recover commissions for 'the sale of land. The plaintiff claims that he procured purchasers for sixteen quarter sections of land in South Dakota under a contract with the defendant by which he was to be paid $50 per quarter section for his services, and that the ■defendant has paid only $211 thereon, leaving a balance of ■$589 due. The defendant admits that he agreed to pay the plaintiff $50 per quarter section for all lands sold by the plaintiff which belonged to him individually, and that the plaintiff sold three quarter sections of such land, and earned •$150 in commissions thereby; but he claims that the balance of the lands sold by the plaintiff was the property of a corporation called the Artesian Land Company, and he denies ■that he agreed to pay the plaintiff anything for selling said last-named land. The defendant also claims to have paid ■$275.82 in excess of the commissions earned by the plaintiff, and counterclaims to recover that sum.

The action was tried before a jury, the principal question ■being as to the terms of the contract between the parties. In the course of his charge to the jury the trial judge gave the following instructions:

“Tour verdict, of course, will be based upon the evidence, :and the evidence alone. You must carefully, impartially, and fairly weigh it, and all of it, to the best of your ability, and render such verdict as you find and believe from the evidence should be rendered. In weighing the testimony of the witnesses, you are not bound to believe everything testified to by a witness to be a fact, because the witness so testifies, provided you believe from the evidence in the case, and from all the facts and circumstances proven on the trial, that such witness is mistaken as to some matter testified to, or has knowingly and wilfully testified falsely in relation thereto. And if you find and believe from the evidence that any witness has wilfully and knowingly sworn falsely on this trial as to any matter or thing material to the issues in this case, then you are at liberty to disregard the entire testimony of such witness, except in so far as such testimony has been corrob*143orated by other credible evidence in tbe case, or by facts and circumstances proven on tbe trial.”

At tbe close of tbe general charge tbe following colloquy between tbe court and counsel took place:

*"Court:*Did you notice any misstatements in the charge, gentlemen? *Mr. Claivson:*If tbe plaintiff recovers, he must recover on a preponderance of tbe evidence. *Court:*Yes; (to jury) tbe burden of proof is upon tbe plaintiff to establish the contract as be claims it to be. *Mr. Douglas:*That is, from tbe weight of tbe testimony. *Court:*Yes; tbe weight of tbe testimony, not tbe number of witnesses.”

Tbe jury returned a verdict for tbe plaintiff, with damages assessed at $391.64, and tbe defendant appeals from judgment thereon.

Eor thg appellant there was a brief by P. *J. Clawson*and *L. Q. Hardesty,*and oral argument by *Mr. Clawson..*

Eor tbe respondent there was a brief by *H. N. B. Caradine*and *A. 8.*Douglas, and oral argument by *Mr. Douglas.*

Winslow, J.

Tbe appellant’s principal contention is that that part of tbe charge of tbe court relating to tbe credibility of witnesses, which is quoted in full in tbe statement of tbe case, is erroneous. Separate exceptions were not taken to tbe various sentences of this part of tbe charge, but one general exception was taken to tbe whole thereof. In this situation, the rule is familiar that, if any distinct and independent proposition covered by tbe exception is correct, tbe exception is unavailing.

Tbe last proposition contained in that part of tbe charge quoted, to tbe effect that, if tbe jury believe that any witness has wilfully and knowingly sworn falsely as to any material matter' in issue, then they are at liberty to disregard bis entire testimony, except so far as corroborated by other credible ■evidence, is undoubtedly a correct statement of tbe law. Tbe cases so bolding are numerous, beginning with *Mercer v. Wright*, 3 Wis. 645, and ending with *Patnode v. Westen*
      *144haver, 114 Wis. 460, 90 N. W. 467. Had a separate exception been preserved to tbe proposition immediately preceding: the sentence Just considered, the question -whether it could be sustained would be a doubtful one. It must be said that it is unfortunate in its wording, if not positively erroneous, because liable to be wrongly interpreted. The principle is-well settled in this court that if an instruction is so worded that it may reasonably receive two different interpretations,, one correct and one incorrect, it must be held erroneous and prejudicial. *Small v.*Champeny, 102 Wis. 61, 78 N. W. 407, and cases cited at page 68 of 102 Wis. (78 N. W. 409). Stripped of verbiage, the sentence in question says that the-jury are not bound to believe everything a witness testifies to, provided they believe that the witness is mistaken or has wilfully falsified as to one matter testified to. Flow, if this can only be construed by a reasonable mind to mean simply that the jury may reject the testimony of the witness as to the one matter about which he is mistaken or has falsified, the instruction is correct; but if reasonable men upon the jury might understand from the sentence that, if they believed' the witness was mistaken or has falsified as to one matter, then they were at liberty to reject his testimony as to other matters, it is evidently erroneous and misleading. Herein-lies the only difficulty with the instruction. As no proper exception has been preserved, we do not decide the question, but we may properly indicate that, if the idea which was in the-mind of the court is to be given to the jury, it should be given more clearly, and in language which will admit of no reasonable misconstruction.

Exception was also taken by the defendant to the remarks-of the court made during the colloquy between court and counsel at the close of the charge relating to preponderance of evidence and burden of proof. The remarks were strictly correct. Assent was given to the proposition that the plaintiff must recover, if at all, upon the preponderance of evi*145dence, and the further instruction was given that the burden of proof was upon the plaintiff to establish the contract as he claimed it to be by the weight of the testimony. There was no request for any more specific instructions, and hence no error.

An exception was urged to one ruling upon testimony, which must be briefly considered. The plaintiff claimed to have induced one Smock to go to South Dakota to examine the lands, and that Smock had purchased a number of quarter sections as the result of the visit. The defendant denied that plaintiff had sold any lands to Smock. In order to prove his contention that there had been a sale to Smock, the plaintiff testified to a conversation with the defendant in which the defendant admitted that Smock bought a quarter section, but also said that he (defendant) was obliged to buy a quarter section with him to get him to buy, and that Smock paid $1,200 for his quarter section, but that defendant paid only $300 for his, whereupon the plaintiff objected to this way of treating customers. The latter part of the conversation was objected to by the defendant as irrelevant, but the objection was overruled. We find no' error in this ruling. The entire conversation related more or less directly to one of the contested questions in the case. While the part objected to was somewhat remote in its bearing, still it was held between the parties, and related to the general subject matter of the controversy, and hence was properly allowed. °

Finally it was objected that the verdict was against the evidence. We have examined the evidence with care, and find it to be sufficient.

*By the Court.*— Judgment affirmed.