Weaver v. Summitt

• Decision Date: 10 January 1925
• Docket Number: 25,543
• Citation: 117 Kan. 416,232 P. 590
• Parties: OMAR TOPE and J. F. WEAVER, Partners, etc., Appellees, v. W. E. NICHOLS and CHARLES SUMMITT, Appellants
• Court: Kansas Supreme Court

232 P. 590

117 Kan. 416

OMAR TOPE and J. F. WEAVER, Partners, etc., Appellees, v. W. E. NICHOLS and CHARLES SUMMITT, Appellants

No. 25,543

Supreme Court of Kansas

January 10, 1925

Decided January, 1925

Appeal from Kingman district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURISDICTION--Judgment Exceeding $ 100--Right of Appeal Not Frustrated by Remittitur of Part After Appeal Taken. Where a judgment is entered in the trial court for a sum of money in excess of $ 100, exclusive of costs, an appeal will lie to the supreme court; and the appellee cannot frustrate the aggrieved party's right of appeal by filing a partial remittitur after an appeal was taken.

2. SAME--Remittitur Filed Too Late to Affect Amount in Controversy. Plaintiffs recovered judgment from defendants for $ 104.06. Defendants served notice of appeal. Plaintiffs filed in the trial court a remittitur reducing the judgment to $ 99.99. Held, tat the remittitur was filed too late to affect the amount in controversy so far as the right of appeal was concerned.

3. AGENCY--Contract for Commissions--Commission Earned. Where agents were employed to dispose of property at a specified price to the owners, and the agents were to receive as their commission all they could get above that price and were to have the exclusive authority to dictate the selling price during the life of their agency, and where the agents produced a prospective buyer with whom the defendant owners closed a bargain for the property in disregard of the rights of the agents, rendering it impossible for them to proceed further with their contract of special agency, the owners were liable to the agents for a commission.

4. SAME--No Error in Record. Other errors assigned touching the trial, its incidents and consequences, examined, and not sustained.

Charles C. Calkin, of Kingman, for the appellants.

S. S Alexander, of Kingman, for the appellees.

OPINION

DAWSON, J.:

This was an action for a commission on the sale of a stallion and jack. Plaintiffs' oral contract of employment with defendants provided that plaintiffs could keep as their commission all they could get above $ 175. Plaintiffs were authorized to dictate the price to any buyer they might obtain. Plaintiffs promptly found a prospective buyer, and he and defendants and plaintiffs discussed various phases of a bargain, but the closing of a contract was postponed for three days, during which time defendants effected a deal with the same prospective buyer on terms of their own making and without regard to the rights of plaintiffs under their agency employment.

Plaintiffs sued for a commission of $ 100. Jury trial; special findings; verdict for plaintiffs, and judgment accordingly. Defendants appeal.

After notice of appeal was served on plaintiffs, they filed a remittitur on their judgment, reducing it from $ 104.06 ($ 100 and interest) to $ 99.99, and raise the point that the amount involved in the judgment is insufficient to give this court jurisdiction. (R. S. 60-3303.) But defendants' right to appeal was absolute at the time they gave notice of appeal. Plaintiffs could not strip defendants of that right by the belated filing of a remittitur. This matter seems to be governed by statute in some jurisdictions, but by what seems to be the weight of authority and the better reasoning a waiver or release of a part of the award after judgment is entered is unavailing to defeat the right of appeal. ( Kennedy v. National Bank, 128 Iowa 561, 104 N.W. 1021, syl. P 2; Finch v. Hartpence, 29 Neb. 368, 45 N.W. 684; Ft. Worth & D. C. Ry. Co. v. Hodge & Speer, 58 Tex. Civ. App. 540, 125 S.W. 350; N. Y. Elevated Railroad v. Fifth Nat. Bank, 118 U.S. 608, 30 L.Ed. 259, 7 S.Ct. 23, and Rose's notes thereto in 118 U.S. 269, 30 L.Ed. 601, 7 S.Ct. 32; 3 C. J. 423, et seq.)

Touching the errors assigned by defendants, it is first argued that plaintiffs' agency was founded on a special contract which would not entitle them to a commission except in compliance therewith. Such is the general rule, of course, but here the conduct of defendants in closing a bargain with the buyer found by plaintiffs prevented plaintiffs from negotiating a contract which would have yielded to defendants their prescribed price and some overplus thereto as a commission for plaintiffs, in strict conformity with their special agency contract. (19 Cyc. 262.) By that contract plaintiffs were given the right to fix the price at which the animals should be sold. While plaintiffs' agency continued defendants had no right to dictate the price nor to take the bargain-making out of their agents' hands.

One who employs an agent to sell his property or to find a...