A charge which materially misstates the contentions of the prevailing party, and tends to confuse the jury as to those contentions and as to the real issues in the case in such manner as to permit recovery on a contention not made by the prevailing party and not authorized by the evidence, constitutes prejudicial error.
This was a suit by the plaintiff corporation to recover the reasonable value of certain architectural services rendered the defendant. It was alleged in the original petition that the defendant had employed the plaintiff to prepare architectural plans for the development of a tract of land owned by the defendant and had agreed to pay the plaintiff the reasonable architectural fee for such services, which was alleged to he $11,380.
A second count was added to the petition by amendment in which the plaintiff alleged that the defendant had entered into an express agreement to pay the plaintiff as compensation for its services an amount equal to 5 percent of the construction cost of the building proposed to be designed and erected on the defendant's property; that the defendant had breached this contract by refusing to go forward with the projected construction; and that because of the defendant's repudiation of the contract which prevented the plaintiff from completing the work contracted for, the defendant was obligated to the plaintiff for the reasonable value of the architectural services rendered which was alleged to be $11,380.
The case proceeded to trial and, upon the conclusion of the plaintiff's case, counsel for the defendant stated in open court that the defendant admitted liability for the reasonable value of the services rendered by the plaintiff. The plaintiff then elected to go to the jury on count 2 of its petition. The jury returned a verdict for the plaintiff in the exact amount prayed, $11,380, and the defendant filed a motion for new trial. The exception is to the denial of the motion for new trial as amended, and to certain antecedent orders of court refusing to allow a third party to intervene in the case during the pendency of the motion for new trial and refusing to allow the defendant to take the deposition of and propound interrogatories to the president of the plaintiff corporation in connection with the pending motion for new trial.
1. The trial court in summarizing the allegations of the plaintiff's original petition instructed the jury as follows "[A]nd he alleges and sets forth in his petition that the reasonable value of services he rendered was $11,380 which he alleges defendant agreed to pay." The defendant in special ground 5 of his amended motion for new trial contends that this instruction constituted a material misstatement of the plaintiff's contentions as shown by the allegations of the original petition since the plaintiff did not contend therein that the defendant had agreed to pay the sum of $11,380 is the reasonable value of services rendered, but lead only alleged that the defendant had agreed to pay the reasonable value of such services which the plaintiff alleged to be $11,380.
This error was not rendered harmless by the fact that it constituted a material misstatement of the original allegations of the plaintiff's petition since the court prior to its instruction to the jury to consider only count 2 as set forth in the amended petition, instructed the jury that the allegations of the amended petition, including count 2 thereof, were substantially the same as the allegations of the original petition.
2. The alleged errors complained of in the remaining grounds of the amended motion for new trial are not likely to occur on the retrial of this case and these grounds need not be considered.
3. The remaining assignments of error are rendered moot by the judgment of this court granting a new trial to the defendant.
Judgment reversed. Felton, C. J., and Deen, J., concur.