Witty v. Saling

ALLEN, J.

(after stating the facts). — The verdict cannot be allowed to stand. Plaintiffs sued upon an express contract. By the terms of the writing itself, they were to receive $1000, as commission, in case they procured a purchaser ready, willing and able to purchase the property at the price stipulated in the contract. It was averred that the written contract was, subsequent to its execution, modified by parol so that plaintiffs’ commission was to be reduced to $750, and proof was offered to sustain these averments of the petition. Plaintiffs pleaded this contract, as modified by the subsequent parol agreement, averred that they had completely performed the contract on their part by producing a purchaser ready, willing and able *578 to purchase and pay for the property, and plaintiffs’ testimony all went to sustain these allegations of the, petition. On the other hand, the defendants denied that they were bound by the contract, and denied that they owed plaintiffs anything whatsoever. The issue thus made was the only issue tried in the lower court, and manifestly the jury was bound either to return a verdict for plaintiffs for the full amount of $750 claimed by them, or for nothing. The verdict of the jury for $500 is not responsive to the pleadings, and is in the very teeth of the instructions given by the court.

In Weisels-Gerhardt R. E. Co. v. Pemberton Ins. Co., 150 Mo. App. 626 , 131 S. W. 353 , there was a like verdict in a suit of exactly this character, namely, for a broker’s commission for the sale of real estate. This court speaking through NortoNI, J. said: “The instructions submitted to the jury the question as to whether or not the contract for commissions was made, and the jury were directed that in the event of a finding for plaintiff the verdict should be for $6200. Though the jury found for plaintiff, it awarded him a recovery of $3100, only, or, in other words, precisely one-half the amount sued for. Defendant insists that the verdict should be set aside for. the reason it is not responsive to the issue in the case and for the further reason that it discloses on its face the jury acted arbitrarily in the premises and in utter disregard of the evidence and instructions of the court. As a general rule, one is not entitled to a reversal of the judgment because it is more favorable to him than the case asserted in the trial court justifies. [2 Ency. Pl. and Pr., 527.] In keeping with this general doctrine it has been several times decided in this State that a judgment should not be reversed on appeal for the reason it appears to be for a much smaller sum than the plaintiff insists was due on the theory advanced for a recovery. The following cases will illustrate: Alderman v. Cox, 74 Mo. 78 ; Gaty v. Sack, 19 Mo. App. *579 470 ; Gifford v. Weber, 38 Mo. App. 595 ; Chinn v. Davis, 21 Mo. App. 363 ; Crigler v. Duncan, 121 Mo. App. 381 , 99 S. W. 61 . But in all of these cases the issues were such as to warrant the jury in reckoning with the equities involved and it seems the verdicts were awarded accordingly. . . . The Supreme Court has conclusively settled the question so far as we are concerned in Cole v. Armour, 154 Mo. 333 , 66 S. W. 476 . The ease mentioned is directly in point and under the Constitution it is controlling authority here.”

It is earnestly insisted however by respondent that the verdict should be permitted to stand for the reason that there was a clause in the contract whereby it was agreed that in the event the owner should sell the farm to any person not piucured by plaintiffs, then plaintiffs were to receive one-half of the specified amount of commission; that defendant Martha Saling testified that she had sold the farm to one Grimes Carder with whom the plaintiffs had nothing to do, and that therefore the jury might well have found that plaintiffs were only entitled to one-half of the commission specified in the written contract, to-wit, $500. This contention is without merit, for the reason that no such issue as this was made by the pleadings, and the cause was not tried upon any such theory below. The petition counts upon the written contract, as modified by the parol agreement, and avers in positive terms that the plaintiffs sold the property to one J.'Y. Phillips, and that plaintiffs thereby became entitled to recover the sum of $750, the said agreed amount to be paid them as commission. There is not a word to be found in the petition predicating any right to recover upon a sale of the property made by the owner to some purchaser found by her, and no such issue was tried. The instructions given on behalf of plaintiff directed the jury to find a verdict for plaintiff for $750, in the event that they found facts justifying a recovery by plaintiff at all.

*580 Respondent further urges that the appellants should not be heard to complain that the verdict rendered against them was not as large as it should have been, so long as plaintiffs are willing to abide by it. This contention is disposed of by what we have quoted from the Weisels-Gerhardt case, supra. It was not a case in which the jury might exercise a discretion as to the amount of its verdict. Plaintiffs were either entitled to the amount agreed upon as commission or they were entitled to nothing. There is clearly no middle ground which the jury may take, in an attempt to do “rough justice” between the parties.

While it may seem a hardship upon plaintiffs to deprive them of the benefit of a verdict for less than they sue for, when they are willing to accept the amount thereof, we are bound by the ruling of the Supreme Court and cannot allow the verdict to stand.

It is unnecessary to notice the other assignments of error. The judgment of the circuit court is reversed and the cause remanded.

Reynolds, P. J., and Nortoni, J., concur.