Kortjohn v. Altenbernd

• Decision Date: 20 November 1883
• Citation: 14 Mo.App. 342
• Parties: HENRY KORTJOHN, Appellant, v. CHRIST ALTENBERND, Respondent.
• Court: Missouri Court of Appeals

14 Mo.App. 342

HENRY KORTJOHN, Appellant,

v.CHRIST ALTENBERND, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1883.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

KLEIN & FISSE, for the appellant, cited Jones v. Water Co., 18 Ga. 539; Anderson v. Railroad Co., 54 N. Y. 334.

B. SCHNURMACHER, for the respondent: Where the judgment is evidently for the right party, and the appellant could but be a loser if he should be granted a new trial, the appellate court will not reverse the judgment.-- Hedecker v. Ganzhorn, 50 Mo. 154. Even though errors were committed by the court below.-- Jackson v. Magrudder, 51 Mo. 55.BAKEWELL, J., delivered the opinion of the court.

This was an action begun before a justice of the peace to recover $60 for commissions on a sale of real estate, and also $5 for drawing the deed, and $1 paid to the notary for the acknowledgment.

There was a verdict and judgment for defendant. Plaintiff moved for a new trial. The court thereupon made an order that, unless defendant would file a stipulation consenting to a judgment against him for $6, the motion would be sustained. The defendant filed a stipulation accordingly. Thereupon judgment was entered for plaintiff for $6. The costs of the circuit court to date of the judgment were adjudged against plaintiff, for the reason that the amount recovered in the circuit court did not exceed the recovery before the justice.

Plaintiff testified that he was a real estate dealer; that one Vortreide came to his office inquiring about some real estate owned by defendant, for which he offered $40 a foot. Plaintiff reported this offer to defendant, telling defendant that his commission would be two and a half per cent. Defendant said that he must have $40 a foot. Plaintiff then saw Vortreide, got from him $50, paid it to defendant, as earnest money, got his deed and abstract of title; drew the deed and sent the notary to defendant's house and paid him $1 for taking the acknowledgment. Plaintiff requested the purchaser to give him $60 in cash and the balance of the purchase-money in a check. He intended to hand to defendant only the check; but changed his mind and gave him both check and money. Defendant then signed the deed, and, after it was delivered, plaintiff demanded his commissions, which were refused.

Defendant swears that he told plaintiff from the first that he must have the $40 a foot for himself; that plaintiff said nothing about commissions until the matter was closed. That plaintiff first handed him the check, whereupon defendant said the sum was too small by $60, and refused to sign the deed. The plaintiff then went to his safe and got the balance in money and paid it to defendant. Defendant then signed and delivered the deed, and plaintiff then demanded $66. Defendant said that he owed nothing; that plaintiff had said nothing about commissions. Defendant did not request plaintiff to draw the deed; but did ask him to have a notary call on his wife.

There was no other witness examined except Vortreide, who says that he was sitting in the front part of the office talking to another man; that the trouble between plaintiff and defendant began after the deed was signed; that plaintiff did not go to his safe for money; but that he (the witness) paid no attention to what passed.

The instructions given were of such a character, that the jury, to find for defendant, must have found that there was no sufficient evidence of any agreement, express or implied, that defendant...