Bressler v. McVey

• Decision Date: 09 April 1910
• Docket Number: 16,503
• Citation: 108 P. 97,82 Kan. 341
• Parties: G. W. BRESSLER, Appellee, v. GEORGE MCVEY, Appellant
• Court: Kansas Supreme Court

108 P. 97

82 Kan. 341

G. W. BRESSLER, Appellee, v. GEORGE MCVEY, Appellant

No. 16,503

Supreme Court of Kansas

April 9, 1910

Decided January, 1910.

Appeal from Norton district court; WILLIAM H. PRATT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

VERDICT -- Contrary to the Evidence -- Excessive or Inadequate Award. Where the sole question submitted to a jury is whether the plaintiff is entitled to recover upon a contract and there is no dispute concerning the amount nor any basis for a finding that the defendant owes a less sum than that claimed, a verdict for half the amount should not be received, and if received should be set aside as contrary to the evidence at the instance of either party.

J. R. Hamilton, for the appellant.

L. H. Thompson, for the appellee.

OPINION

MASON, J.:

G. W. Bressler sued George McVey for a real-estate broker's commission. He asserted that a contract had been made by which if he found a purchaser he was to receive whatever the property brought in excess of $ 7000; that he had procured a customer ready and able to take it at $ 7500, but that the defendant, without just cause, refused to convey. While the answer was a general denial, the defense developed at the trial was that the plaintiff's agency was not exclusive, and that before his negotiations culminated a sale had been made to another buyer. There was no dispute as to the amount of the commission--the only controversy was whether it had been earned. The jury, however, returned a verdict for the plaintiff for $ 250, upon which judgment was rendered, from which the defendant appeals.

The appellant claims that the judgment should not stand because it is contrary to the evidence, inasmuch as, whatever view may have been taken of the conflicting testimony, the plaintiff was entitled to $ 500 or to nothing at all. The appellee seeks to answer this contention by saying that a party can not complain that a judgment against him is too small. That, however, is not the ground of the appellant's complaint. He finds fault with the judgment, not because it is not large enough, but because it rests upon a verdict utterly without support in the evidence. If the verdict could be construed as a finding in favor of the plaintiff it would support a judgment not merely for $ 250, but for $ 500. But it is no more for him than against him. If the jury believed his story they were bound to render a verdict for the full amount. In deciding that he was not entitled to $ 500 they in effect refused to accept his version of the matter. The case was not one where by discrediting a portion of his testimony his claim could be allowed in part, nor was there room for error in computation or for misapprehension in estimating the amount of recovery. The only question submitted to the jury was, Did the plaintiff earn his commission? The process by which the verdict was arrived at is perfectly obvious. If the plaintiff testified truly, the defendant owed him $ 500; if not, there was no indebtedness. The jury were called upon to determine which condition existed, but instead of doing so they assumed to settle the controversy by allowing one-half of the claim and disallowing the other half, no doubt with the idea that "splitting the difference" was a fair method of compromising the dispute. But in this they mistook their function. Each litigant, the defendant no less than the plaintiff, was entitled to an answer to the question the jury were impaneled to determine.

"Where the verdict which the jury return can not be justified upon any hypothesis presented by the evidence, it ought obviously to be set aside. Thus, if a suit were brought upon a promissory note, which purported to be given for $ 100, and the only defense was that the defendant did not execute the note, and the jury should return a verdict for $ 50 only, it would not be allowed to stand; for it would neither conform to the plaintiff's evidence, nor to that of the defendant. It would be a verdict without evidence to support it; and it is not to be tolerated that the jury should thus assume, in disregard of the law and evidence, to arbitrate the...