Tonkel v. Moore

• Decision Date: 26 October 1931
• Docket Number: 29454
• Citation: 162 Miss. 83,137 So. 189
• Court: Mississippi Supreme Court
• Parties: TONKEL v. MOORE et al

137 So. 189

162 Miss. 83

TONKEL v. MOORE et al

No. 29454

Supreme Court of Mississippi

October 26, 1931

Division B

1 BROKERS.

In case of employment to sell, broker must find purchaser and also conclude negotiations for sale on terms authorized.

2 JUDGMENT.

Court improperly entered judgment for amount demanded under count respecting brokers' agreed compensation in disregard of amount fixed by jury under count upon quantum meruit.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.

Action by A. D. Moore and others against M. Tonkel. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed, and judgment here.

Wynn & Hefter, of Greeneville, for appellant.

There was no liability on appellant because the deal was not completed by the broker, but was completed by the owner. The owner did not approach the buyer, but the buyer made all the overtures to the owner. The time limit expired and broker ended all negotiations and left all parties, so far as he was concerned, or so far as his efforts were concerned, without any intention of making a trade.

Swain v. Pitts, 82 So. 305; Ferguson v. Quick, 79 So. 83.

Where there is an issue of fact submitted to a jury, and the jury returns a verdict upon that issue responsive to same, the contention cannot be maintained that a finding of a sum less than the full amount warrants the court in entering a judgment for the full amount sued for.

Hines v. Lockhart, 105 So. 449.

The judge cannot, under the guise of amending the verdict, invade the province of the jury, or substitute his verdict for theirs. After the amendment, the verdict must be, not merely what the judge thinks it ought to have been, but what the jury intended it to be. Their actual intent, and not his notion of what they ought to have intended, is the thing to be expressed and worked out by the amendment.

27 R. C. L., page 887, sec. 62.

Percy, Strauss & Kellner, of Greenville, for appellees.

Where the terms of the sale are not specified in a contract between the principal and the broker and the actual sale is made by the principal, still the broker has performed his contract when he produces a purchaser to whom the principal sells.

Delta & Pine Land Co. v. Wallace, 83 Miss. 656; Johnson v. Sutton, 94 Miss. 544; Jenny v. Smith-Powell Realty Co., 125 Miss. 608; Cook v. Smith, 119 Miss. 375; Roell v. Offutt, 138 Miss. 599.

Verdicts although not formal, yet if they are substantially good, may be molded into proper form.

Montgomery v. Tillison, 1 Howard, 215.

It is sufficient if a verdict be substantially good; it may then be molded into proper form by the court.

Horgart v. Montgomery, 6 Howard, 93.

The court had a right to treat the verdict of the jury as divisible and sustain on the question of liability and correct it as to the amount.

Fowles v. Hardin, 109 Miss. 318; Stone-Lowe Cotton Co. v. Weil Bros., 129 Miss. 60; Henry v. Elkin, 156 Miss. 136; Ruffin v. Schwabacher, Ltd., 156 Miss. 326.

Argued orally by Jerome Hafter and J. A. Lake, Jr., for appellant, and by Ernest Kellner, for appellee.

OPINION

Griffith, J.

Appellees real estate brokers, sued appellant for the compensation claimed by them, as a result of a real estate sale, which, as the evidence shows, was consummated, not by the brokers, but by appellant direct with the purchaser. There are two counts in the declaration. The first count declared that appellees were employed to sell the property and that they did sell the same, whereby they earned the agreed compensation for the said sale services of two dollars and fifty cents per acre, amounting to two thousand fifteen dollars. The second count is upon the quantum meruit, and the allegations thereof are sufficient to admit the evidence and a finding to the effect that the employment was to find a purchaser, and that a purchaser was thereupon procured by appellees; that appellees were the procuring cause in a sufficient legal measure to admit of recovery...