Tage v. Shenon

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Carl A. Davis, Presiding Judge. Judgment awarding compensation to agent for his services. The judgment, to the extent that it awarded the plaintiff a commission, was clearly outside the pleadings; it was contrary to the theory of the case; it was supported by no prayer; no opportunity was offered to resist the same, and it is therefore void. (23 Cyc. 816, and citations under note 51; Balfour-Gufhrie Inv. Go. v. Sawday, 133 Cal. 228, 65 Pac. 400; Orton v. Brown, 117 Cal. 501, 49 Pac. 583; McDougald v. Argonaut Land Go., 117 Cal. 87, 48 Pac. 1021; Campbell v. Flannery, 32 Mont. 119, 79 Pac. 702, 80 Pac. 240.) No direct testimony was offered by either party as to the reasonable value of the services of the agent (respondent). In such event it is unquestionably within the province and power of the court, sitting in equity without a jury, to himself determine such fact, especially where he has heard in detail the services performed and the value of the thing purchased. Equitable relief may be adapted to the circumstances of the case. There is no limit to the variety of decrees in this regard. (Robinson v. Clark, 76 Me. 493; 16 Cye. 478, 479.)