Blakely v. Miller

• Citation: 180 Mo. App. 389,167 S.W. 1136
• Decision Date: 01 June 1914
• Docket Number: No. 11133.,11133.
• Parties: BLAKELY v. MILLER.
• Court: Missouri Court of Appeals

167 S.W. 1136

180 Mo. A. 389

BLAKELY v. MILLER.

No. 11133.

Kansas City Court of Appeals. Missouri.

June 1, 1914.

1. TRIAL (§ 333)—VERDICT—RESPONSIVENESS TO ISSUES.

The verdict and judgment were responsive to the issues, where the verdict was for $600, and a contract fixed plaintiff's commission at

$1,000, the seller to pay $1 per acre commission, but, while the farm was listed as containing 1,000 acres, the purchaser refused to take it because it in fact only contained 600 acres.

2. APPEAL AND ERROR (§ 1033)—REVIEW— HARMLESS ERROR—VERDICT.

A party will not be heard to complain in the appellate court that the verdict rendered against him was not as large as it should have been, though there is an exception where the issue is contract or no contract and the alleged contract unalterably fixes the measure of liability.

Appeal from Circuit Court, Jackson County; D. E. Bird, Judge.

Action by J. T. Blakely against R. M. Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

H. L. Green, of Kansas City, for appellant. Frank Yeoman, of Kansas City, for respondent.

JOHNSON, J.

This is an action for the recovery of a real estate agent's commission. The petition alleges that defendant, who lives in Kirksville, employed plaintiff, a broker in Kansas City, "to find a buyer either for cash or exchange" for a farm of 1,000 acres owned by defendant in Phillip county, Ark.; that defendant agreed to pay a commission of $1 per acre for any of the said lands so sold or exchanged through the efforts of plaintiff; that plaintiff found a purchaser who was ready, able, and willing to take the property on the proposed terms; and that defendant refused to comply with the contract. The prayer is for judgment in the sum of $1,000. The answer is a general denial. The jury returned a verdict for plaintiff for $600, and defendant appealed from the judgment rendered thereon. A reversal is asked on the ground that the verdict and judgment are not responsive to the issues made by the pleadings and evidence.

Defendant wrote plaintiff a letter inclosing a descriptive list of properties he owned and desired to sell or exchange and stating that he "would be willing to pay one dollar per acre commission on any of them." The Arkansas farm was listed and described as consisting of 1,000 acres of land bordering on the Mississippi river, but above the high-water plane and not subject to overflow. Plaintiff found a buyer who was ready, willing, and able to take this farm...