Hodges v. Bayley

• Decision Date: 15 January 1912
• Citation: 143 S.W. 92,102 Ark. 200
• Parties: HODGES v. BAYLEY
• Court: Arkansas Supreme Court

143 S.W. 92

102 Ark. 200

HODGES v. BAYLEY

Supreme Court of Arkansas

January 15, 1912

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge, Affirmed.

Judgment affirmed.

T. S Osborne, for appellant.

A broker is not entitled to commission unless he has a contract to that effect. 70 Ark. 385; 65 Ark. 278. Defendant was entitled to have plaintiff state his cause of action in more definite terms. Kirby's Digest, § 4564; Id 6091, 4565. The verdict of the jury must be signed by some one of their number as foreman. Kirby's Digest, § 6204; 5 Ark. 444; 29 Am. & Eng. Ency. Law 1042.

P. E Rowe, for appellee.

The facts are determined by the jury. 67 Ark. 399; 74 Ark. 478; 76 Ark. 115; 70 Ark. 512. The court did not err in refusing to require plaintiff to produce a broker's license. 89 Ark. 195. A statute requiring the verdict of a jury to be signed by their foreman is directory only. 23 S.E. 760; 2 Tex. 204; 24 S.W. 645; 20 Ia. 465; 34 Ind. 464; 6 Ia. 456; 25 Mo.App. 300; 30 Tex.App. 601.

OPINION

FRAUENTHAL, J.

This is a suit to recover a broker's commission which the plaintiff claimed he earned by procuring for defendant the sale of a stock of groceries owned by him. The action was instituted in a court of a justice of the peace upon the following account:

"G. J. Hodges,

"To T. A. Bayley, Dr.

"To 5 per cent. commission on sale of grocery stock to Thornton & Co., on $ 1,018....$ 50.90"

The defendant moved the court to require the plaintiff to make the statement of his cause of action more definite and certain, and the motion was overruled. Upon appeal being taken to the circuit court, the motion was there renewed and overruled. The trial resulted in a verdict in favor of plaintiff.

It is urged that the court erred in refusing to require the plaintiff to make the statement of his cause of action more certain and definite. It is provided by section 4565 of Kirby's Digest that an action may be commenced in a court of a justice of the peace by filing an account upon which the suit is based. The object of the provision of the statute (Kirby's Digest, § 6147) requiring a party to make his pleading definite and certain is to inform the opposing party of the facts upon which the alleged claim is based, so as to enable him to prepare his defense. The account filed in this case, we think, was sufficient to advise the defendant of the nature of the claim for which plaintiff sought recovery, so that he might prepare any defense which he had thereto. The defendant does not claim that he was surprised by any testimony adduced by plaintiff or that he was unable to obtain any witness whose testimony he desired to introduce to sustain his defense. He was not prejudiced in any event, therefore, by his motion being overruled.

It is contended that the verdict is contrary to the evidence adduced upon the trial of the case. The testimony relative to the issue decisive of the rights of the parties was conflicting. The plaintiff was engaged in the brokerage business in the city of Fort Smith, selling real estate and personal property upon commission. He had an agent by the name of C. Peterson who testified that he entered into a contract with the defendant by which plaintiff was employed to sell his stock of goods. The amount of the commission to be paid plaintiff was not mentioned, but defendant listed his property with him, and a statement thereof was taken by said Peterson in which a price of $ 1,200 or $ 1,300 was placed upon the stock of groceries. The plaintiff procured one Thornton as a prospective purchaser, and introduced him to defendant, who thereafter sold his stock of groceries to him for $ 1,018. In his testimony the defendant denied that he had listed his property with plaintiff for sale, or that he had employed him in any way relative thereto. He admitted, however, that the purchaser, Thornton, had been introduced to him by plaintiff's agent, and, after he had consummated the sale, this agent demanded payment of plaintiff's commission, and that, while he denied owing him anything, he offered to pay him $ 10 if he was due him any amount.

It may be that the verdict is not sustained by the preponderance of the evidence which was adduced upon the trial of the case. But it is not the province of this court to say whether or not the verdict of a jury is contrary to the weight of the evidence. The rule is that, if there is any evidence adduced which is legally sufficient to sustain the verdict, it becomes conclusive in the consideration of the case upon appeal to this court.

It has been held that a broker who has been employed to sell property is entitled to his commission where he has brought about between the principal and another negotiations which resulted in a sale which was consummated by the principal. Hunton v. Marshall, 76 Ark. 375, 88 S.W. 963. The broker is entitled to his commission in such event, although the principal sold upon terms different from those mentioned to the broker. Stiewel v. Lally, 89 Ark. 195, 115 S.W. 1134. If the amount of the commission is not agreed upon at the time of the employment, then the broker is entitled to recover a reasonable amount therefor. We think there was some testimony proving that defendant listed his property for sale with the plaintiff and employed him to secure a purchaser for his stock of goods, and that plaintiff was the procuring cause of the sale thereof which defendant consummated with Thornton; and there was also evidence showing that the amount of the commission recovered was a reasonable and customary compensation for like service rendered in making such sales. Branch v. Moore, 84 Ark. 462, 105 S.W. 1178; Posten v. Hall, 97 Ark. 23, 132 S.W. 1001.

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