226 P. 203 | Ariz. | 1924
— Appellee, I. F. Wolpe, recovered judgment against George Fornara and Joseph Valdrini for $1,050 for services as a real estate broker and they appeal.
The complaint contains two causes of action, one based upon an express and the other upon an implied contract. In the first, the plaintiff alleges that at the
The answer is a complete i denial of both causes of action.
The case was tried with the aid of a jury, which returned a verdict in favor of the plaintiff for $525, whereupon he moved for judgment for $1,050, the full amount asked for, notwithstanding the verdict, and this was granted by the court.
It appears from the testimony of appellee, who was at that time a real estate agent and broker in Phoenix, that in the fall of 1921 the defendants authorized him to find a tenant for a hotel they were then building; that he put his sign on the building and ran advertisements in the daily papers. That appellants gave him the following terms for a ten-year lease: $275 per month for the first year, $300 the second,
T. M. Burroughs, a real estate broker in the city of Phoenix for fifteen years, called in behalf of appellee, testified that he was acquainted with the usual and customary schedule of commissions for leasing property in Phoenix, and that it was 5 per cent for the first year and 2y2 per cent, for the years thereafter.
The evidence in behalf of appellants was directed entirely to the question of the employment of appellee
Appellants’ first assignment attacks this instruction upon the ground that the case was submitted upon both causes of action, or rather upon both counts, an express contract and a quantum meruit, it being their contention that if the jury concluded appellants were liable upon the implied contract it was deprived of the right to say what the reasonable value of the services was. But under the testimony the amount due appellee, if any at all, whether upon the express or the implied promise, was not in dispute, the evidence on that question being absolutely uncontradicted and of such a nature — not opposed to the probabilities of the case — that it should not have been disregarded. 23 C. J. 42. In discussing the weight to be given the uncontradicted testimony of a witness having personal knowledge of the market value of a commodity at a given time and place, the court said in effect (syllabus) in McNamara v. Georgia Cotton Co., 10 Ga. App. 669, 73 S. E. 1092:
*388 “Testimony of a witness having personal knowledge as to the market value of a commodity at a given time and place is evidence of a substantive fact, and, if undisputed, will demand a finding that the commodity was of the value fixed by the witness. In such a case, the jury cannot arbitrarily disregard such testimony and substitute their own opinion as to the market value of the commodity.”
If, therefore, appellants were liable at all, they were liable for the sum shown by the evidence, and the only issue which could possibly have arisen under either count relative to the amount was not how much but whether the full sum asked for or none was due. If the agreement were an express one, it was the full sum claimed, because the testimony was that appellee told, appellants his commission would be 5 per cent of the first year’s rental and 2% per cent of that for the remaining years; and, if it were an implied one, the amount was the same, because the evidence discloses that the customary charge in the city of Phoenix for procuring tenants was 5 per cent of the first year’s rental and 2% per cent of that for the remaining years, and in the absence of a special agreement the agent is entitled to a reasonable compensation which, ordinarily, is the amount allowed by the custom or usage prevailing locally among that class of brokers. 9 O. J. 580. In Webb v. Wolfard, 56 Or. 394, 108 Pac. 1005, the court used this language :
“Nothing was said by either of them at that time regarding the amount to be paid as commission. Under such circumstances, the law implies a promise on the part of defendant to pay the usual or customary commission charged in that neighborhood for like services, if it were shown there was such a customary rate, or, if not, then the reasonable value of the services rendered would be the measure of defendant’s liability.”
In line with its view of the law as announced in the foregoing instruction, the court granted appellee’s
“The court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”
Paragraph 548, Bevised Statutes 1913, it is true, provides that judgments shall conform to the verdict, but this refers only to verdicts which “comprehend the whole issue, or all the issues submitted to them.” Paragraph 541, Bevised Statutes 1913. If the jury goes beyond this and decides issues not submitted
‘ ‘ The answer denied the presentation of the note to the maker, the demand of payment, the refusal to pay, and notice of presentation, demand, and refusal. There was no denial of the’execution or indorsement of the note, and no plea of payment. There was therefore no issue to go to the jury except as to presentation, demand, refusal to pay and notice. The jury returned a verdict in the following form: ‘We, the jury in the above-entitled cause, find for the plaintiff, and assess his damages at the sum of $294.50.’ The plaintiff moved for judgment for the amount of the note and interest, which motion was denied, and judgment was entered for the amount named in the verdict. The plaintiff was entitled to his motion. The jury had nothing to do with matters not in issue, and a verdict referring to such matters is, so far, surplusage. So far as the verdict related to matters in issue, it was in favor of plaintiff. The court should have computed the amount due on the note for principal and interest, and rendered judgment accordingly. Judgment vacated, and cause remanded, with instructions to make computation and render judgment in accordance with this opinion.”
To the same effect see Harris v. McLaughlin, 39 Colo. 459, 90 Pac. 93; Wentworth v. King (Tex. Civ. App.), 49 S. W. 696; Schweitzer v. Connor, 57 Wis.
The verdict not being responsive to the issues submitted, the court should have called the attention of the jury thereto and have sent it back for further deliberation, but for some reason this was not done. What it did do, however, amounted practically to the same thing, and at that stage of the trial was the only way it could comply with the latter portion of paragraph 548, providing that the judgment “shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.” The verdict against appellants established appellee’s right to full relief, and it was the duty of the court to see that he obtained this whether by directing the jury to insert the proper amount or by itself rendering judgment for it notwithstanding the jury’s failure to do so. The presumption is that in finding appellants liable the jury was governed by the evidence, and therefore that its insertion of $525 instead of $1,050 was not a compromise but merely an error or irregularity. Such being true, a substantial right of appellee was not thereby affected. As said by the court in Schweitzer v. Connor, supra:
‘ ‘ The court might have directed the jury to return a verdict for the plaintiff for $1,176, damages, and the defendant could have taken no valid exception to such a direction. What was done amounted in substance to the same thing. The jury evidently made a mistake in not following the instruction of the court as to the rule of damages. But upon the admitted facts we are inclined to think the court had power to increase the verdict so as to give the statutory rule. At all events, we should not be justified in reversing the judgment for this irregularity or error, if it were one, in view of the statute which declares that in every stage of the action an error or defect in the proceedings which does not affect the substantial rights of the adverse party should be disregarded.”
“not material and necessary that the rent agreed upon should be exactly the same as that which plaintiff testified was given him by defendants as their price. If it is approximately the same, it will be considered as if it were the same. In addition to that, there are two other controlling factors. The first is that, if the plaintiff was to procure a tenant, the terms of that employment are fulfilled when he does so, and the rent finally agreed upon is immaterial. The second is that the defendants completed the arrangement themselves and were satisfied with a less amount which precludes them from basing any defense upon the fact that there was some difference in the amount originally asked and the amount specified in the lease.”
The objection to the first part of this instruction, that if there was an agreement whereby appellee was to procure a tenant at a certain rental and one was procured at a lower figure, appellee could not recover, is not sustainable. While the pleading and proof are that appellee was given certain terms upon which the property would be leased, yet, if he brought it to the notice of the person who afterwards purchased it, the fact that the owners themselves consummated the deal and voluntarily took a less sum than that given appellee would not deprive the latter of his right to the commission. Roberts v. Markham, 26 Okl. 387, 109 Pac. 127; Schlegal v. Allerton, 65 Conn. 260, 32 Atl. 363. In Plant v. Thompson, 42 Kan. 664, 16 Am. St. Rep. 512, 22 Pac. 726, the following syllabus appears:
“An agent employed to sell real estate, who first brings it to the notice of the person who ultimately becomes the purchaser, is entitled to his commissions on the sale, although the latter is effected by the owner of the property, nor can the owner evade his liability to pay the agent his commissions by*393 selling for a sum less than the price given the agent, when the reduction is made of the owner’s own accord. ’ ’
The expression, the “defendants completed the arrangement themselves,” it is contended, is a comment on the evidence, because it “assumes that there was some arrangement between plaintiff and defendants whereby a tenant was to be procured.” By the word “arrangement” as here used, appellants refer to the original employment, while the court in using that term was merely directing the attention of the jury to the latter end or conclusion of the negotiations without reference to how, when, or by whom they were initiated. It had already instructed that appellee must have been employed to procure a tenant and have rendered that service, and, though there was a dispute as to who began the negotiations, there was absolutely none concerning the fact that appellants and the Grand Hotel Company completed them. If it were intended that this term should convey the impression that appellee initiated the negotiations, it is apparent, in view of the entire instructions, and the jury could not have understood otherwise, that it was further intended that it should have such effect only in case the jury found appellee had begun them.
A discussion of the remaining assignments is unnecessary.
The judgment is affirmed.
BOSS and LYMAN, JJ., concur.