Russel v. Amador

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

Upon the trial of this cause, which was a bill in chancery for specific performance, the defendant’s counsel asked the court to instruct the jury that “ The acceptance of payment by Amador, the defendant, from Russel, the plaintiff, under a protest that the contract incorrectly described the land intended to be conveyed, cannot be construed into a waiver of any rights which Amador claimed to have, to defend against Russel’s claim for a larger amount of land than that which Amador claimed to have conveyed,” which instruction was refused and the court charged the jury, “that the acceptance of payment by Amador, under a protest that the contract incorrectly described the land intended to be conveyed, was a circumstance from which the jury had a right to consider, whether the fraud, if any, in obtaining the execution of the contract, was waived by Amador or not.”

*403The instruction asked, was correct and pertinent to the issue. The question whether Amador was estopped from setting up fraud was before the jury, and the court should have instructed them, that the receipt of payment under protest did not amount to an estoppel or waiver; while the instruction of the court might very well have been given as explanatory of the instruction asked for, or for the purpose of directing the mind of the jury to the question of fraud, the waiver of which the plaintiff attempted to establish by such acceptance of payment. We have before held that the court must give or refuse the instructions asked for, and that no modification of the court which alters the meaning, or might mislead the jury, can be substituted.

Judgment reversed, and cause remanded.