Brown v. Byers

• Decision Date: 09 February 1924
• Docket Number: 25,025
• Citation: 223 P. 477,115 Kan. 492
• Parties: W. H. BROWN et al., Appellees, v. NELLIE A. BYERS, Appellant
• Court: Kansas Supreme Court

223 P. 477

115 Kan. 492

W. H. BROWN et al., Appellees, v. NELLIE A. BYERS, Appellant

No. 25,025

Supreme Court of Kansas

February 9, 1924

Decided January, 1924.

Appeal from the Leavenworth district court; JAMES H. WENDORFF judge.

Judgment reversed and trial ordered.

SYLLABUS

SYLLABUS BY THE COURT.

FARM CONTRACT--Verdict Unsupported by the Evidence--Verdict Set Aside. Where the verdict is not supported by any evidence, although conceding that the evidence would have warranted a judgment for a larger amount the verdict should be set aside at the instance of either party.

Arthur M. Jackson, of Leavenworth, for the appellant.

J. E. McFadden, and O. Q. Claflin, jr., both of Kansas City, for the appellees.

OPINION

HOPKINS, J.:

The action was one for services rendered in conducting a farm under an alleged express contract. Plaintiffs recovered and defendant appeals.

It was claimed by plaintiffs, and evidence was introduced showing, that on or about August 15, 1919, the defendant hired plaintiffs for the purpose of overseeing, living on, and conducting the affairs of a farm for defendant for a period of one year--from September 1, 1919, to September 1, 1920--that it was part of said contract of employment that plaintiff, W. H. Brown, was to oversee said farm, care for the stock thereon, have general supervision over the crops, keep the time of the men employed thereon; that Lula M. Brown was to take charge of the house, do the cooking for the hired men and have general charge and supervision of all of the household; that, in consideration of the joint labors of plaintiffs, the defendant agreed to pay them, in cash, $ 75 per month, to furnish them with all necessary food, and, in addition, agreed to pay plaintiffs a sum equal to ten per cent of the value of all wheat, 20 per cent of all corn, and 20 per cent of all hogs raised during the year; that defendants were owing plaintiffs, on account of failure to pay the stipulated amount of cash, for three months $ 225 and $ 6 expended by plaintiffs for groceries; that the wheat, corn and hogs raised on the farm amounted to a sufficient sum that, all together, the defendant was indebted to plaintiffs in the full amount of $ 1,479.

The defendant admitted the employment of the plaintiff, W. H. Brown, at a monthly wage of $ 75 per month, he to bring his wife, Lula M. Brown, to the farm, both of whom were to be allowed to use the house free of charge, and both of whom were to be furnished their board during the time W. H. Brown worked. The defendant denied any agreement relative to a percentage of the wheat, corn and hogs grown upon the farm.

On the trial plaintiffs offered testimony in detail in support of their claimed contract; also testimony as to the amount and value of the crops. The defendant offered no testimony as to value of the crops.

The jury being fully charged on the issues, returned a verdict in favor of the plaintiffs for $ 531. Motion for new trial by defendant was overruled, and she brings the case here. The defendant contends that, as she took no issue, either in her answer or the testimony, as to the amount or the reasonable value of the crops raised on the farm; and that, as plaintiff's testimony on this phase of the case was in no way impeached, controverted or denied, the verdict of the jury was contrary to and in violation of the court's instructions; that there was no basis under the pleadings and evidence for the verdict as returned, and that the trial court erred in not setting it aside and granting a new trial.

In Bressler v. McVey, 82 Kan. 341, 108 P. 97, it was said:

"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...