Martin v. Barnett

• Citation: 208 S.W. 278
• Decision Date: 18 January 1919
• Docket Number: No. 2217.,2217.
• Parties: MARTIN v. BARNETT.
• Court: Court of Appeal of Missouri (US)

208 S.W. 278

MARTIN v. BARNETT.

No. 2217.

Springfield Court of Appeals. Missouri.

January 18, 1919.

Appeal from Circuit Court, Jasper County; C. V. Buckley, Special Judge.

Action by C. T. Martin against W. Barnett. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. R. Lively, of Webb City, for appellant. A. G. Young, of Webb City, for respondent.

FARRINGTON, J.

The plaintiff filed a petition before a justice of the peace in Jasper county, seeking to recover on a verbal contract. The petition states that the defendant was the owner of a lot in Webb City, Mo., and that he employed the plaintiff to sell it, and agreed to pay him the sum of $100 as commission; alleges that he, as agent, found and procured a purchaser for the lot, who bought from the defendant, and that the defendant refused to pay him his commission. Judgment is asked for $100. The jury returned a verdict giving plaintiff $50, and judgment was entered accordingly.

An appeal is brought to this court by the defendant. The ground for the error assigned is that the petition alleged on a verbal contract, and that the only evidence introduced tending to prove any liability in plaintiff's favor proved only a verbal contract for the payment of $100 commission, and that the verdict does not respond to the issues made in the Pleadings, the evidence, or the instructions given by the court. As stated before, the petition counts solely upon an expressed contract to pay $100. As to what the contract was, according to plaintiff's testimony we quote:

"Q. What arrangement, if any, did you have with Mr. Barnett about the commission? A. The commission was set on the start. We charge 5 per cent. over here, but we settled the commission on a basis of $100."

Plaintiff's testimony, and that o: other witnesses introduced by him tended to show that the defendant placed his property with him to sell for the price of $2,500, and agreed to pay him $100 commission; that he afterwards reduced it to $2,300, agreeing to pay the $100 commission; that he found a Mrs. Peart, showed her the property, induced her to buy, and that she in fact did buy this property from the defendant. Plaintiff's evidence tended to show that he was the procuring cause of the sale.

The defendant's evidence tends to show that he did not owe plaintiff anything, and that he had only given it to lint to sell within a certain time, and the time given had expired.

A great many instructions were asked by both plaintiff and defendant. Instruction II, however, asked by plaintiff, was a correct instruction, defining the issue made by the pleadings and made by the evidence. This instruction told the jury that if they believed the defendant placed his property in the hands of plaintiff, and that by reason of the efforts of plaintiff the property was brought to the attention of a party who subsequently purchased the same, and the plaintiff's efforts were the procuring cause of said purchase, then plaintiff was entitled to his commission, and the verdict should be for the plaintiff in the sum of $100.

As hereinbefore stated, the jury returned a verdict for $50. There is no evidence to sustain this verdict. The issue was plainly drawn in the trial of contract or no contract for $100 consideration for making the sale, and the only possible theory upon which the jury could have arrived at the...