Bankston v. McKnight

• Decision Date: 20 April 1925
• Docket Number: 24885
• Citation: 139 Miss. 116,103 So. 807
• Court: Mississippi Supreme Court
• Parties: BANKSTON et al. v. MCKNIGHT et al. [*]

103 So. 807

139 Miss. 116

BANKSTON et al. v. MCKNIGHT et al. ^[*]

No. 24885

Supreme Court of Mississippi

April 20, 1925

Division B

1 TRIAL. Submission of issue of quantum meruit unauthorized by evidence.

There being, under the evidence of both parties, an agreement for a specific commission, and they differing only as to whether it should be in cash or in the notes of the purchaser, submission of the issue of quantum meruit was error.

2. APPEAL AND ERROR. Verdict cannot stand when unsupported by evidence.

Verdict and judgment wholly unsupported by the evidence, which was all that a certain greater amount was due, and conflicted only as to whether it was payable in cash or the notes of a certain person, cannot stand.

3. APPEAL AND ERROR. In view of erroneous submission of issue of quantum meruit, verdict held not to involve an implied finding on issue of manner of payment.

Where though the evidence was in agreement that a certain amount was due, and the only conflict was whether it was agreed, as contended by plaintiff, that it was to be paid in cash, or as claimed by defendant, in notes of the purchaser, there was erroneously submitted the issue of quantum meruit, verdict for a smaller amount cannot be considered to involve a finding for plaintiff on the issue of manner of payment, so as to entitle him to judgment for the amount sued for notwithstanding the verdict.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Tunica county, HON. W. A. ALCORN, JR., Judge.

Action by R. S. McKnight and another against Lee Bankston and another. From a judgment for plaintiffs for less than claimed, defendants appeal, and plaintiffs bring cross-appeal. Affirmed in part, and reversed and remanded in part.

Affirmed on cross-appeal, and reversed and remanded on direct appeal.

Dulaney & Jaquess, for appellants.

I.

APPELLEES RATIFIED CONTRACT BY SUIT AND COULD NOT PLEAD FRAUD. 13 C. J. 624; Goodall v. Stewart, 65 Miss. 157, 3 So. 257; 6 R. C. L. 635; 2 R. C. L. 759, sec. 18; Wilson v. Hundley, 96 Va. 96, 70 A. S. R. 837; Kimball v. Cunningham, 4 Mass. 502, 3 Am. Dec. 230; Kearney, etc. Co. v. Union Pacific Ry. Co., 97 Iowa 719, 59 A. S. R. 434.

II.

A RECOVERY ON THE QUANTUM MERUIT COUNT NOT PERMITTED BY THE EVIDENCE. Gibson v. Powell, 5 Sm. & M. 712; Morrison v. Ives, 4 Sm. & M. 652; Fowler v. Austin, 1 Howard (Miss.) 156; Railroad Co. v. Pressley, 45 Miss. 66.

III.

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT WAS MADE AFTER JUDGMENT ENTERED AND THEREFORE PROPERLY OVERRULED. State of Miss. v. Commercial Bank, 6 Sm. & M. 218; 15 R. C. L. 608; 33 C. J. 1187.

Crisler & Crisler, for appellees.

RECOVERY ON THE QUANTUM MERUIT. Appellants are certainly in no position to complain about any instructions that may have been given authorizing a recovery on the quantum meruit. Had the jury followed the evidence as to the reasonable value of services, they would have rendered a verdict for two and one-half times the amount the plaintiffs were suing for.

Moreover, the jury could have taken part of the evidence here and a part there and have arrived at their own conclusion about whether or not the five dollars per acre was actually agreed upon. Certainly, it is clear from the record that the appellants expected Marshall McDonald and S. Roy Crisler to be compensated for their services. And surely no one but the appellees can complain about the amount of the verdict under the quantum meruit count, because if the instructions and evidence on this count had been the guide for the jury, they would have received certainly not less than the amount sued for, the evidence showing that the reasonable value of the services was two and one-half times the amount sued for by the plaintiffs.

It is significant that no complaint is made by the appellants as to the form or technical correctness of any instruction granted the plaintiffs, but the only contention made is that they are not applicable to the case at bar. No authority is cited for this.

II.

CROSS-APPELLANTS ENTITLED TO FULL AMOUNT SUED FOR. Appellees requested a peremptory instruction from the court for the full amount sued for, and thereafter moved the court for a judgment for the full amount, notwithstanding the verdict. Both of these motions were overruled, and appellees, cross-appellants herein, assigned the action of the lower court in refusing this peremptory instruction in overruling the motion for the full amount as error.

In the first place, plaintiffs were entitled to a peremptory instruction because the contract relied on by defendants to bar this claim was clearly void and unenforceable, and the evidence clearly showed that the defendants intended that McDonald and Crisler should be compensated for their services. This alleged contract, which sets out that McDonald and Crisler were to take the Cowans' note for three thousand two hundred dollars, being void, the appellees, cross-appellants herein, were clearly entitled to a recovery on the quantum meruit. As stated before, the only evidence in the record as to the reasonable value of the services is that these services were worth five per cent of the consideration or twelve dollars and fifty cents per acre, which was two and one-half times the amount the plaintiffs were suing for. On the other hand, McDonald and Crisler testified that they agreed to do the work for five dollars per acre. Under either view of the evidence the plaintiffs were clearly entitled to at least the amount sued for. Barclay v. Hanlan, 55 Miss. 610.

In conclusion on this point, we call the court's attention to the fact that the verdict of the jury has fully established the liability of the defendants and further establishes the fact that the alleged contract purporting to obligate McDonald and Crisler to accept the Cowans' note for three thousand two hundred dollars was procured through fraud. Under any view of the evidence the plaintiffs were entitled to a verdict for the amount sued for.

Dulaney & Jaquess, for appellants in reply.

InSTRUCTIONS ON THE QUANTUM MERUIT COUNT. The instructions based on the quantum meruit count were erroneous. Both the Bankstons and the real estate agents testified that there was a definite contract between the parties, the only difference being as to whether commissions were to be paid in cash or notes. No one testified that there was an agreement to pay whatever might be the reasonable value of the services nor was there any testimony from which such a promise could be implied. We cannot tell from the verdict of the jury whether the jurors believed the Bankstons or believed the real estate agents. The amount of the verdict could only have been arrived at by disbelieving all of the witnesses, or by a jury, part of whom believed the witnesses on one side and part of whom believed the witnesses on the other. It is apparent that the verdict is a compromise verdict which settles nothing. It does not establish the contract as testified to by Crisler and McDonald any more than it establishes the contract as testified to by the Bankstons.

We do not reply in detail to the comments of learned counsel for appellees as to the validity of the written contract because even if the written contract should be ignored the testimony of W. L. Bankston and Lee Bankston was that the verbal contract was for the payment of commissions by the delivery of notes. Therefore, even if the written contract were unenforceable or void for any of the reasons mentioned by counsel for appellees there was a conflict in the evidence as to how commissions should be paid and a peremptory instruction for plaintiffs would have been error.

Argued orally by J. W. Dulaney, for appellants.

OPINION

ANDERSON, J.

Appellees R. S. McKnight and John W. Crisler, as assignees of Marshall McDonald and Roy Crisler, real estate brokers, brought this action in the circuit court of Tunica county agai...