Borenstein v. Uhl

• Citation: 20 N.E.2d 189,107 Ind.App. 67
• Decision Date: 10 April 1939
• Docket Number: 15993.
• Parties: BORENSTEIN v. UHL.
• Court: Court of Appeals of Indiana

20 N.E.2d 189

107 Ind.App. 67

BORENSTEIN v. UHL.

No. 15993.

Appellate Court of Indiana, in Banc.

April 10, 1939

Jackiel W. Joseph and Theo. R. Dann, both of Indianapolis, for appellant.

Davis Pantzer, Baltzell & Sparks, Smith, Remster, Hornbrook & Smith, and Gustav H. Dongus, all of Indianapolis, for appellee.

BRIDWELL Judge.

Appellee brought this action against one Annie Borenstein, now deceased, to recover a commission alleged to be due him for procuring a tenant for certain real estate then owned by said decedent, and located in the city of Indianapolis, Indiana. The complaint was in ten paragraphs, each paragraph seeking to recover the commission claimed. An answer in three paragraphs was filed, the first paragraph being a general denial; the second alleging in substance that the tenant secured by appellee was a foreign corporation not authorized to transact business in this state, and that the lease procured through the efforts and negotiations of the appellee was "unlawful and void," and that appellee had "a direct pecuniary interest" in its procurement the third paragraph avers, among other things, that the commission, if any, that appellee was entitled to recover was to be based on the total amount of rents collected, and proceeds upon the theory of a partial failure of consideration in that the lessee did not occupy the premises leased for the full period of time as provided by the lease. A reply in general denial to the second and third paragraphs of answer closed the issues. The cause was submitted for trial to a jury, and at the close of the evidence, appellee dismissed all except the fourth, fifth, sixth and tenth paragraphs of his complaint. The jury returned its verdict in favor of appellee, in the sum of $1,500. In due course, the said Annie Borenstein filed her motion for a new trial. During its pendency she died, and thereafter Louis J Borenstein, administrator of her estate, was substituted as party defendant. The motion for a new trial was overruled judgment was rendered on the verdict, and this appeal perfected. The error assigned is the overruling of the motion for a new trial.

The causes assigned for a new trial, and presented on appeal are: That the verdict of the jury is not sustained by sufficient evidence; that said verdict is contrary to law; error in the giving of instruction numbered five, tendered by appellee, and in refusing to give instruction numbered six, tendered by appellant's decedent.

The four paragraphs of complaint remaining in the record when the jury was instructed contained similar allegations concerning the services rendered by appellee to appellant's decedent, but differ in that the fourth paragraph avers that said decedent agreed to pay a reasonable compensation for the services rendered; the fifth paragraph that said decedent agreed to pay the regular fixed commission adopted by the Indianapolis Real Estate Board, in force and effect at the time of the rendition of such services and applicable thereto; the sixth paragraph that the commission to be paid under the agreement was the "usual commission obtaining in the city of Indianapolis and vicinity;" while the tenth paragraph sought recovery for "work, labor and services rendered by the plaintiff to the defendant, at the defendant's special instance and request, in procuring a tenant for real estate owned by the defendant in the city of Indianapolis."

The verdict returned was a general verdict, and it is not possible to determine from the verdict upon which paragraph of complaint it was awarded. Under such circumstances, if there be sufficient evidence to sustain the verdict upon either of the four paragraphs of complaint, the judgment rendered on the verdict will not be disturbed, even though there may not be sufficient evidence to justify a verdict upon some one or more of the other paragraphs of complaint.

In determining the questions before us for consideration, we must keep in mind the issues submitted to the jury for its decision. This is not an action to enforce any term or provision of the lease contract entered into between appellant's decedent and the Kirk Property Company, but to the contrary, is one to recover an amount alleged to be due for services rendered by appellee for said decedent, three paragraphs of the complaint alleging rendition of services under an agreement as to the amount of the commission to be paid, while the tenth paragraph avers services were rendered at the special instance and request of said decedent, and seeks recovery of the reasonable value thereof.

Upon reading the evidence, we find it to be exceedingly conflicting as to many material facts provable under the issues. There seems to be a lack of evidence to sustain all the material allegations of either the fourth, fifth or sixth paragraphs of complaint. Each of these paragraphs allege, among other facts pleaded, that the tenant procured by appellee was the Kirk Property Company, and the appellee himself at the trial of the cause testified that he had never heard of The Kirk Property Company prior to the time the lease was executed, and first learned of the existence of such corporation through his attorney.

On appeal from a judgment rendered on a general verdict where issues were joined and submitted to a jury for decision upon more than one paragraph of complaint, it will be presumed that such verdict was rendered upon that paragraph of the...