be no question; but to render them applicable and available the principal fact must be found, -that the parties were brought together, and the transaction made possible, by the instrumentality of the agent." I think I can consistently challenge the production, or the introduction into the opinion of this court in the case at bar, a single circumstance that brings this case within the provisions of the principles last enumerated. In the particular case last above recited the parties were not brought together by the agent, so also in this case. In that case the agent did not inform the defendant that the purchaser was a possible purchaser. To quote further, the court said: "His commission is earned by finding a single purchaser, ready and willing to enter into a valid contract for the purchase upon the terms fixed by the owner, and, having introduced such a one to the owner as a purchaser, he is not deprived of his right to commission by the owner negotiating the contract himself." * * * And cases cited. The court say in that case, that so far as appears, the defendant had no knowledge that Blodgett would be a purchaser upon any terms. I am warranted in asking, did Graves and Clemons or The Owl Canon Gypsum Company in this case have any knowledge that Dr. Abel was willing, and ready to purchase, or was ever introduced as a purchaser? I deem it unnecessary to cite further authorities in support of the conclusion here reached, that the judgment rendered against the defendants jointly was clearly error, and that the evidence does not support the verdict. That under the allegations of the complaint and the evidence, plaintiffs were not entitled to recover against either of the defendants. Recovery must be had on the allegations and not on the proof. Tucker v. Parks, 7 Colo. 62; Miller v. Hallock, 9 Colo. 551. The judgment should be reversed. Affirmed. BROWN, PLAINTIFF IN ERROR, V. CRAWFORD, FOR THE USE 1. INSTRUCTIONS MUST BE IN WRITING. It is error to instruct a jury orally. 2. SAME, ERROR NOT CURED, WHEN. At the trial objection was made to instructing the jury orally. The court, however, gave oral instructions, but directed the stenographer to note and extend those given. After argument the instructions were extended and signed by the judge. Held, that the error was not thereby cured. Error to the County Court of Arapahoe County. Messrs. C. E. & F. HERRINGTON, for plaintiff in error. Mr. GEO. F. DUNKLEE and Mr. O. E. JACKSON, for defendant in error. RICHMOND, P. J., delivered the opinion of the court. This was an action to recover commissions alleged to have been earned by D. G. Taylor, for whose use this suit is brought, in procuring the purchaser for certain real property. The record discloses that after the production of the testimony and before the argument by the respective parties, the defendant presented written instructions to the court, and at the same time objected to the court instructing the jury orally. The court proceeded however to instruct the jury, but requested the stenographer of the court to note the instructions given. At the conclusion of the instructions and before the argument, the defendant again excepted to the instructions as given, because the same were given orally; and excepted to the instructions generally, as well as to the refusal of the court to give the instructions asked by him. 2 235 s21c 273 It also appears from the record that after instructing the jury orally, and subsequent to the argument, the instructions as given and taken by the stenographer were extended and signed by the judge. Subdivision 6 of section 187 of the Code, provides that, "Before the argument is begun, the court shall give such instructions upon the law to the jury as may be necessary, which instructions shall be in writing and signed by the judge." Session Laws 1887, page 156. In thus giving the instructions we think the court erred and violated the express provisions of the practice act above referred to. The extension of the instructions by the stenographer and the signature of the judge did not cure the error. The language of the Code is that it shall be given in writing before argument, and signed by the judge. In the case of Rich v. Lappin, 43 Kans. 666, it was held that, "The district court must give its instructions to the jury in writing, when requested so to do by either party; and the giving of them orally and having them taken down by a stenographer, and after the jury has retired having them written out by the stenographer, is not sufficient." In Rising Sun etc. Co. v. Conway, 7 Ind. 187, it was held that, "When the court is requested, at the proper time, to give its charge to the jury in writing, the whole charge should be in writing, and should be given literally as it is written." Laselle v. Wells, 17 Ind. 33; T. & W. R. R. Co. v. Daniels, 21 Ind. 257; 2 Thompson on Trials, § 2376. Where the statute requires a written charge to the jury it is error for the court not to comply with it, and compels a reversal of the judgment. The State v. Potter, 15 Kans. 302. In the case of the City of Atchison v. Jansen, 21 Kans. 560, this doctrine is announced: "The statute provides that the court shall, when requested by either party, reduce its instructions to writing. This provision is mandatory, and a disregard of it is error, compelling a reversal. Hence, when the record contains several pages of instructions, which were given orally to the jury, in disregard of the demand of one party for written instructions, and some of which are plainly instructions upon the law of the case, and not mere directions as to the form of the verdict or other collateral matters, the court must reverse the judgment irrespective of the question whether such oral instructions as are incorporated into the record, are correct statements of the law applicable to the case." The foregoing authorities have received the sanction of the supreme court of this state in Montelius v. Atherton, 6 Colo. 224; Lee v. Stahl, 9 Colo. 208. For this error alone the judgment of the court below must be reversed. We do not think it necessary for us to review the testimony in the case, or pass upon the other questions presented by the assignment of errors. The judgment must be reversed. Reversed. THE TRIBUNE PUBLISHING COMPANY, PLAINTIFF IN 1. PLEADING AMENDMENT. A complaint which fails to allege the time when the note sued upon is payable may be amended, and unless such amendment is prejudicial to or prevents defendant from interposing a proper defense, a continuance of the cause for the purpose of allowing defendant to amend its answer, will not be granted. 2. SAME. Courts are liberal in allowing amendments when the cause of action is not changed, and where the complaint fails to state when the note sued on is payable, but the note is overdue, and the maker knows it to be the note he will be called upon to defend against, an amendment whereby the time of payment is inserted, does not change the character of the action. Error to the District Court of Arapahoe County. Mr. CHAS. H. TOLL, for plaintiff in error. 2 237 4 551 2 237 11 533 Messrs. MORRISON & KOHN, for defendant in error. RICHMOND, P. J., delivered the opinion of the court. Defendant in error, William A. Hamill, instituted this action against the plaintiff in error, The Tribune Publishing Company, upon a promissory note executed on the 21st day of April, 1883, for the sum of $2,500 with interest at one per cent per month from date until paid. The note sued upon was signed by F. J. V. Skiff as treasurer of The Tribune Publishing Company. It appears from the record as well as from the argument of counsel that the complaint failed to allege the date when the note was payable, and that upon the trial plaintiff sought to introduce a note executed on the 21st day of April and payable six months after date. To the introduction of the note objections were interposed on the ground that the note sued upon was a demand note, and that the note introduced in evidence was a note due six months after date. Thereupon plaintiff asked leave to amend the complaint and to insert the words "six months after date." To this amendment a most vigorous protest was interposed, but the application to amend was allowed, and defendant asked leave to amend the answer, attorneys insisting that they had entered upon the trial for the purpose of defending a note executed on the 21st day of April for the sum mentioned, on demand. The record also discloses the fact to be that the trial judge said he would allow time to amend the answer, providing the counsel, without formal application by motion, affidavit or otherwise, would state that they had been prejudiced by the amendment and required time to prepare an additional or a different defense. To which counsel for defendant made no satisfactory response, and practically admitted that they knew of the existence of the identical note introduced in evidence and which it was the purpose of the plaintiff to declare upon. The contest apparently between the parties was whether or not a recovery could be had under the allegations of the |
