Weisels-Gerhardt Real Estate Co. v. Pemberton Inv. Co.

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 626,131 S.W. 353
• Parties: WEISELS-GERHARDT REAL ESTATE CO. v. PEMBERTON INV. CO.
• Court: Missouri Court of Appeals

131 S.W. 353

150 Mo. App. 626

WEISELS-GERHARDT REAL ESTATE CO. v. PEMBERTON INV. CO.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

Rehearing Denied November 10, 1910.

1. APPEAL AND ERROR (§ 1033) — REVERSAL — GROUNDS — INADEQUACY OF RELIEF.

The general rule that a party is not entitled to a reversal of the judgment because more favorable than the case asserted justifies, and that defendant cannot urge that the verdict for plaintiff is less than he was entitled to, applies only where the issues warranted the jury in reckoning with the equities involved and a verdict was awarded accordingly.

2. TRIAL (§ 333) — REVERSAL — GROUNDS — INADEQUACY OF RELIEF.

Where, in an action on an express contract, the issue raised by the answer denying the contract was whether there was a contract, so that plaintiff, if entitled to recover, was entitled to recover a specified sum, a verdict for less than the specified amount cannot stand, because it does not respond to the precise issue.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by the Weisels-Gerhardt Real Estate Company against the Pemberton Investment Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Schnurmacher & Rassieur and John T. Fitzsimmons, for appellant. Stern & Haberman, for respondent.

NORTONI, J.

This is a suit for commissions alleged to have been earned by plaintiff under an express contract. Plaintiff recovered, and defendant prosecutes an appeal.

There is but one question presented for decision, and that relates to the fact the jury returned a verdict for just one-half the amount sued for, when it appears that under the terms of the contract plaintiff should recover, if anything, the full amount therein stipulated. Plaintiff, an incorporated company, is engaged in the real estate business in St. Louis. Defendant, an incorporated company, owns a 99-year leasehold on the northwest corner of Seventh street and Washington avenue, in the city of St. Louis. It is averred that defendant, desiring to sublet the property mentioned for a term, employed the plaintiff real estate company to negotiate a lease for it. The petition contains but one count, which sets forth an express contract for a commission of 1 per cent. on the gross amount of rents to be received by defendant under the lease. It is averred defendant employed plaintiff to negotiate a lease of its property with the Union House Furnishing Company for a period of years and agreed to pay it a stipulated commission of 1 per cent. on the gross rental for the term; that plaintiff fully performed fall the conditions of the contract on its part by procuring the Union House Furnishing Company to enter into an indenture of lease with defendant for a term of 20 years; that the rental agreed upon for the full period of 20 years was $620,000, payable in installments, etc. Plaintiff therefore prays judgment for the amount of $6,200, or 1 per cent. of the entire amount of rent agreed upon between the parties. The answer is a general denial. Indeed, the only question at issue between the parties relates to the contract; for defendant pointedly denies it in toto. The testimony on the part of plaintiff tends to prove the express contract laid in the petition; that is to say, that defendant expressly agreed to pay plaintiff a commission of 1 per cent. on the total rentals to be received for whatever acceptable lease it might procure from the Union House Furnishing Company. For defendant the evidence tends to prove that no contract whatever was made for the payment of a commission on the lease, and that plaintiff was not employed by it.

The theory of the defense advanced is that plaintiff called at its place of business in the spring and proposed to negotiate a lease with the Union House Furnishing Company for the property, but that no agreement whatever was made touching the matter. It is said plaintiff endeavored to negotiate a lease for...