*1 Upon jury, although the whole ease was not made out lor the possible may produced another trial sufficient evidence to authorize a submission.
Accordingly judgment remanded. All reversed and the cause concur. Hoyt
John G. v. Appellant. (2d) 947. S. W. Leo R. Buder, Two, February 18,
Division *2 Campbell Cummings appellant. & Buder for Bucler *4 ¡áullivan Jones, for re- Hooker, Angert Zimmerman & and Orville spondent. *5 defendant-, 1921, plaintiff the
HIGBEE, January C. On 4, sued City Leo R. in of St. Buder, the Circuit Court the of Louis for $20,167.50, September 27, 1919, with interest from for his commission assisting procuring procuring for and for purchasers the defendant containing 13,445 for tract of land in Dunklin County, timber Company. acres, belonging Timber The -to the Arcadia case plaintiff to a for the on October jury, tried was rendered verdict a-judgment from 31, 1924, $26,332.03, in the sum of and thereon- appealed. the defendant express petition upon
The of amended declares first count the procuring* $20,167.50 of for and pay plaintiff the sum contract to purchasers assisting defendant for said tract procuring for the September price per acre, with interest from $55 land at of of 27, 1919. petition reads:
The count of the amended second plaintiff action, of avers “And cause for another and further plaintiff in sum of justly indebted to the defendant by plaintiff defendant, $20,167.50 for rendered services inclusive, at September, both January, 1919, and between promised and for which special request defendant, instance agreed procuring furnishing, and finding-,' pay, finding, procuring and furnish aiding assisting defendant for a ing purchasers per acre certain-tract land $55 at 13,445 Missouri, comprising about acres County, situate Dunklin Company. purchasers The Timber by then Arcadia owned plaintiff Gideon-Ander found, were procured furnished so Company, Lumber Company and son & Lumber Mercantile acre on purchased paid properties for who September about plaintiff, services of-the
“That reasonable of said value price which the defendant pi’ice charge therefor, and- the usual $20,167.50, was and is pay the same plaintiff pay- although plaintiff demanded paid, has which been damage 27, 1919, September ment thereof from the' which, from interest $20,167.50, in the sum judgment.” prays September 27, 1919, general denial, reads: answer, after amended *6 “For another and in Jan- further defense defendant states 1919, uary, ques- agreement he had an with owner of the land tion for per acre, of price $55 sale at sum of same agreement under which per acre, 25 cents $5 he was to receive less per per month January acre, beginning 1, subject with to a 1919, by reservation agreement price the owner to cancel said or raise the of thereof; said land prior subject at time to the sale said option verbal by so him held defendant offered said land for sale to plaintiff individually per agreed at divide half $55 acre charge plaintiff carrying half with per acre, $5 less the per of 25 cents him per month from the owner for acre received making the sale. plaintiff,
“Defendant about the end of further states that June, 1919, verbally buy land the terms the said under agreement, carry agreement such and refused out such failed purchase bargain. repudiated his “Defendant, July, month of further states price per did acre net to it and $55 owner raise the of said land to gave plaintiff.” this at defendant once notice to reply general The is a denial. wit- a number of plaintiff produced
The and the each defendant following of the evi- trial, a sufficient outline nesses at the but the of all evi- purpose appeal. At the conclusion tire of this dence the amended first count of to the dence the dismissed which to the evidence petition. a demurrer The defendant offered was overruled. engaged the land business I
The testified: have been defendant, Buder, and about my Leo all life. met the my and talked came to office January, 1919, the defendant the last of purchaser a tract of timber getting to find a with mo about me Company, belonging Arcadia Timber County land in Dunklin jury what Q. get you tell the I will containing 13,415 acres. had a said that he A. Mr. Buder said at that time. Mr. Buder contract, which was a Company, of he Timber the Arcadia $55 acre had a fixed member, to sell their land to be which was acre, pay a commission were to rate, reduction, he That for each month. of 25 cents reduced at the charge and taxes interest carrying said, would be lieu —the Now, say? A. ITe said that Q. what did he against land. else divide land he would get help I in and him to sell if would I understood which pay it, me one-half that commission— month cents each a half dollars, less twelve be one-half of five him and to come help I would my I Buder reduction for half. told my best of To the day go matter detail. back the next into the be- Q. "What morning. next recollection he came back the yon thought tween ? A. I told him that over the at that time proposition glad thought I of assistance and would be could be up take which had offered. the basis land, showing gave plat of the a total of me 14,105.45 large ditches, part Little acres. three There ivere acreage drainage 13,445, Aldrich, River system, aaMcIi cut the *7 bring $739,495. per acre, price $55 land Buder made the should my January nearly every day fall, Avasat íaa7ofrom to office or to see January I progressing hoAArI was sale. went to Kennett Aviththe Hemphill February, get Company, or with Lumber touch and and W. D. aaJio Hemphill, saAvMr. C. A. M!r. LassAvell there Company. thought Hemphill Lumber The I in the AArasinterested lay a half miles east of Kennett. Lass- land about and Arcadia two Hemphill him, Hemp- I and talked Avith well and AArentto see Mr. any had land as he position hill said to take on more he was not a I St. Louis went to see just bought 4000 acres. returned to & Mer Mr. with the Gideon-Anderson Lumber Anderson, connected question body virgin land in AA'asa fine Company. The cantile by but AAras drained Little timber, swampy, which now had been I endeavored to interest Anderson and Drainage River District. many others; purchase land continued of this Hemphill in the I Anderson of this commission negotiations with told that Anderson. Mm if land and told he would for the sale of the was offered me portion give him a of the com buy willing I would land began figure buying they about land mission. From time buy myself, portion of the land be I a and timber. then being body. upon land sold the Buders insisted cause parceling Anderson told he had suggested it out. me Mr. Anderson Hemphill told Hemphill, Anderson he would conversations at a Negotiations almost for a part land. were head of the take finally brought September, a head tAAro, month but Avere or bringing up day AA7ere last AA'hen present at the Buder was mortgages. Anderson said he take the subject deal of the acres, pay all a little over ditch, land on east side of the Mr. had a contract made out for Mr. Buder cash, $400,000. over Hemphill land. entered into this Hemphill the balance to take ditch. deal Avas side of the the Avest the land on contract for present. Ai7ere Dur and the defendant Hemphill Anderson, closed. constantly telling kept me that negotiations the defendant ing all the up hurrying up closing of this money by losing not “we were man that man. You I seen this asking had me business every getting off commissions a of our knew there is cents month said, it, I “I know unsold.” land is goes and this month that fast as get people move so deal; you can’t these big but this is a ’’ have them. would like to a he had experience as to broker and that Plaintiff testified liis great land and timber and that he was interested deal of sold owning-large buying of land and corporations tracts and sell- several only way making living; ing he had of them, and was the day he asked Mr. Buder for his commission about the the trade paid closed the commission. and he never inquiry by property admitted that On the court the defendant Company, west of ditch was sold to the Lumber Company; to the Gideon-Anderson that east the ditch Lumber conveyed paid 13,445 all for on the basis of acres. sold On cross-examination:
‘‘Q. Now, you, said, when he called on wasn’t this what he did: He got price acre, I Hoyt, you $55 ‘Mr. this land and want get but if I it everyone, which is sell I could acre month, January beginning sold, until less 25 cents for each 1st it my making subject prior to being to its handled the sale?’ Isn’t you? majority is, yes, A. The sir. But he what he told asked saying land, me, that wanted the he said he wanted me instead help land, proposi- him and he said he get in and sell *8 get procure him help buyer, if I in and a or tion, and that would I buy myself, anything, it or half of if I to that could have wanted company. which was fixed the commission get? “Q. per acre, Yes; which he was to A. was $5 Half of he up help purchaser. if I .willing procure it with me would to divide get “Q. words, you (Interrupting) half— In other were A. it, I people; I could do because knew the I He said he knew that thing long just that had worked on the entree, and he so himself it seriously. anyone him if took did not seem as you “Q. you state at that time if could find a And didn’t that you would land ? buyer No, timber take the A. sir. for the say A. No. “Q. You did not that? say you you bought land, if
“Q. you he told then Now, that give you else, would 'one-half he of what he it to someone or sold give half right? No, per $5 A. he said he would me got; is that carrying charge. acre, less you bought it or sold it to else?
“Q. if he sold—if someone That any selling way, shape land in or Yes; I assisted A. buy In with me. I did not the land. divide manner he would Sunday July I I Buder on about said would with Leo conversation arranged Monday buy was I it; matter not and did not take on it.” tending prove orally much evidence
There was land, buy point but as no made on with is contracted far noticed, it not further so as avoidable. will this oral contract Plaintiff further testified: TJiere was never a word about cutting off the commission the sale made. said, was Then “You he didn’t it take had a and while there isn’t chance commis- sion.” I was told that never immediately had been raised carry I after failed to out the I and at purchase, July no time after sought have acre commission reinstated. I talked with a lot people buying about buying timber about land. split I up. knew it had to be was no willing" go There into large such a thought transaction. I Mr. one time Anderson buy all, it large said it he was too transaction. he He said part could use of the land or timber. I had talks several with Hemphill his at office once Kennett sat Hemphill August transactions between and Anderson. In Sep- they agreed buy tember I when sat the land last conference closing they when were the deal. Anderson kicked out trans- paid action I had the same as cash instead accepting the terms. try I did not to block the deal. did not tell Leo me at that time that nothing I had it, to do with had all been to be- company tween Anderson and and the Mr. himself and Wenger way stand go through. and it will have to or it won’t wrong. my represented I That Mr. Anderson was client. certain things proposed they way him I see were carried out that not Mr. Anderson pay when could made a different deal to you people nearly Half a million in cash. dollars un- There were things contract, in the deed of trust or reasonable whatever it was. examination, plaintiff acquainted On testified re-direct selling lands; timber value of ten the reasonable cent fair get; that is a commission on deals kind. what most brokers of this proportion charged assisting usual that brokers brokers other in 1919 for-such assistance was the sale land one-half compensation. in St. County testified: Louis and was
William P. Anderson lived *9 in under name of the the Gideon-Ander the lumber business Company Wright had & and officesin son Lumber Mercantile the negotiations Hoyt relating G. Building". had with John to Arcade I they Company; Lumber in Feb of the Arcadia commenced the sale ruary up to the of this land in 1919. September, and sale continued my Hemphill president company, and J. A. was president I was of Hemphill figured I Company. Hoyt, together. and Hemphill of the February later, Hoyt figured it from and and I on came I Hoyt probably May February, to see m!e but or June. came buy. Hoyt about to a dozen times and was not' in a came mood buying together; timber, was finally figured it that for the we on go During in on the Missouri Life to it. we asked Melson of State negotiations Hoyt frequently talked with and I Leo Buder. these Hoyt present during' not up Avas these interviews to the last few days along September. of the deal Leo came at various to see me Hoyt days times. talked with last feAv before the me Leo the negotiations AAras deal From I made. the time became interested these looking purchase bought of land up to the the the I continued to time it. I defendant, Buder, dealings
The Leo B. had with testified: January. the him plaintiff, but not I to sell the of offered land the I him I Company $55 Arcadia Timber acre. told had opportunity land, $5 acre out of the less 25 cents to make month, beginning January Avith on of the each account buy. land carrying charge, and he would the I would share vsdth urged Hoyt buy got him I it. to and told him this AA'hat out of I subject company agreement any I with be canceled at had the Hoyt price subject any raised at time, and time. the it in I make an offer take a short said he would take or time. Hoyt latter because called on that time and the June betAAreen Hoyt bringing land. thought (cid:127)I about sale the told me he Avas Hoyt try I told he should not trying he Avas to sell the timber. bought I land, he had no such timber before because to sell the negotiated I had with Mr. Lasswell company. contract agreement. 27th, kind of an On June the June part of same latter upon the terms and I, conditions we, Lasswell go I up draAvn and was to to Kennett papers had and we sale Monday. the deal on I did night Avouldclose Sunday on Saturday morning, 28th, Hoyt on June came because go doAvn not I him why have land. to know would not let wanted my office Sunday, resulting in an oral negotiations on related Witness Hoyt’s land. Witness take the went to Hoyt would contract Hoyt to take land. Witness folloAving declined day office (cid:127) not company that he would take the report not to the didI continued: July again. I him him saw He to see I intended land because reported to and I the office carry contract out the again refused Hoyt backed down on the deal. had Company Timber Arcadia Leo, no on, from now there is said, company president The Fifty-five land. dollars anything out you to make chance for any price is the company; the same price is the net company. president of Buder, brother, A. is G. My one else. Hoyt ar- Tuesday, and told afternoon, I back Avent I is off. 'told him the this deal regarding I had he rangement sorry that I was c'ompany; net to raised been had arrangement you re- land, not take did I was receive .off. which commissions sharing garding there and therefore with me canceled has company That was it from now on. out of anything make to me chance *10 Tuesday, July Hoyt 1st. my came to part office the latter of July get me to asked him authority I to sell the land and told him that could not be only way done and the buy was for him' it. to August Hoyt get In my asked me to to brothers reinstate the com- mission business. I said there no to chance do that since carry refused to out purchase property of the on July 1st or June 30th.
I with the Hemphill Company dealt Lumber and W. D. Lasswell Hoyt. I trying syndicate before Lasswell was knew to form a buy to Hoyt purchasers. timber land. was one I never Hoyt whereby Hoyt any had with deal to sell was the property for my dealings Hoyt me and with were at all times pur- as that aof back February, chaser and these deals went I had been dealing question with Mr. Anderson on the land in early as as the I part prior latter of 1914. could not interest him to 1916. Ander- son made offers on the tract that. me several after I met Anderson July, when Anderson if I get about the 1st said buyer west part for the land of the ditch he would take east the- you get parties ditch if will absorb $5 acre of the cost spoke acreage Hoyt ditch. I east of the and Hemphill about myself it; Hoyt will will I do that Anderson absorb $5 of that with, Hemphill ditch. I talked east and from that time buying on was interested the land. got After to a it materializing, point Anderson, Hemphill it was I where and met Hoyt frequently. present was not at meetings; of these he did making nothing assist this deal whatsoever at that time. In kill my opinion trying the deal. was We had he terms, come to separate agreement that Hemphill and but there was a had Anderson done we could not until was draw out, up papers. to work I Hoyt a commission and first no time demanded learned of his something got I a letter wanting when from Jones & Hocker in Hoyt the street why I met and asked February, 1920. he was me; that he had nothing commission out trying get coming- and that the commission had been canceled with- of the deal out carry out his of his failure to contract when bought drawn because anything- coming he did have had it coming if he land; from ,Hoyt “Tell said, judge.” not from me. company and Hoyt company that the likely was warned repeatedly I had raise carry I out his deal told he refused him that After his price. been canceled. company had agreement I testified: was a witness my director cross-examination On president and Oscar Buder, Buder A. was vice- brother, G. secretary Company. Arcadia Timber As president far company. any stock capital else know quarter My of it. I had a brothers $300,000. held stock
1167 remainder of it. Oscar is is youngest. They tlie oldest and G. A. the meetings of tlie board of directors. I get was anxious to- rid of land; got the way that is I I price. $50 said trying I was up to work they a deal and they said let price, would me have that pay “but carrying will have to 25 cents charge, a month privilege subject is always to withdrawal at I time.” was trying to getting sell the land heavy because the taxes were too me carry my end; my My were not anxious to brothers sell. brothers willing thought were I I ought to sell and something to have out up 1 it.after had worked and gave the deal me privilege. that They dividing did not know I Hoyt Hoyt was until down threw the deal I and then told about $55 them it. land was sold for The per acre; 14,105 were 660 there acres less acres for ditch. odd agreement Lasswell and I brought knew the told him he about a give getting. sale would him a what I agree- I had no prior Hoyt ment with I agree- to sell land. June had an ment with him to him got, share with one-half what which towas charge carrying acre less the of 25 cents acre for each January month which from expired, which in that would instance $5, have been off of which $1.50 $3.50 would been if it had not have gone agreement July, subject into that to cancellation. Buder, attorney defendant,
Oscar E. for the testified that-he was Company; one of the officers directors of the Arcadia Timber that Mr. O. J. Stocke and the Fuerbackers were shareholders directors; that five company there were directors. on the appellant The contends that evidence the and the adventurers; joint quim- defendant that count two is not were one on meruit; support (cid:127)tum proof petition; did not that that sustained, should demurrer at the close of the evidence have been developed trial will control that the contract at the and limit the recovery. amount and character of the upon earnestly count
I. is insisted second declares It quantum 'núeruit, a and that an express an not on contract recovery express a cannot be had as on a upon an contract action citing Ry. Co., 282 meruit, Gillham Met. St. quantum v. Appellant averment, 221 S. W. insists Mo. plain services of “that the reasonable value price charge therefor, and the which the de tiff, tlie usual pay the same was is agreed fendant express on an and not on $20,167.50,” a declaration contract is quantum meruit. express allegation contract the
If an action this were place petition. in the reasonable value of the services have pay is that substance, the defendant averment, services, sucli value is value the reasonable $20,167.50. deserved,” in an
Quantum as has count meruit, “as much he grounded promise pay to action on a that the defendant would much plaintiff for his as as he should deserve. services [Webster’s promise; legal implies the fiction. Int. The law New Diet.] suggest plaintiff may in his declaration “In such case the reasonably deserved, pay him much as promised money, worth such sum of and then aver that his trouble was *12 assumpsit an pay. is called has to This which the defendant omitted Dict.; 32 Cyc. Law quantum meruit.” The on a 1285.] [Bouvier’s Stanley Whitlow, respect quite to that v. in this similar averment Judge W. App. 464, 840, l. 168 S. where said: 181 Mo. c. TriMbde agreed pay’ closing phrase ‘which the defendants the “The petition allegation they expressly an was that not the specified It agreed pay any merely sum. that means specifically pay the value of the services and defendants reasonable the agreement is, made set forth in that pay petition, was as the the sought petition a whole by requesting plaintiff to act. Taken as the express quantum| upon and not or recovery upon a meruit as Ry. Assn., 268 S. Klein v. Terminal W. See also explicit contract.”. Mo. 2; Henderson, 367, 120 col. v. (3), Glover 663, 661 express clearly upon an contract. It is declared The first count pleader second count that the unreasonable assume express think contract. there can be no upon an We also declare quantum a upon is an action meruit. question count that the second fully performed case, the contract»has been Where, in the instant as may except payment, plaintiff nothing remains to be done quantum meruit and use contract on a waive contract sue 292 Short, v. S. computing’ the amount due. [Oaks a basis cited; Mfg. Co., & (3) Moore v. Gaus Sons 738, and cases W. 740 App. 115 975; v. Mo. l. c. 107, Elam, 139, 20 W. Cozad 113 l. c. S. Mo. App. Mace, 393, 397; 64 Mo. Daniels 434; v. 140, 91 W. Henderson S. Cyc. 14; 243; W. 13 40 S. C. J. App. McDaniels, Mo. v. 2935.] the contract between main contention Appellant’s
II. joint adventure. was one of The plaintiff sole- is addressed argument appellant’s counsel printed jy theory. £0 that that the is substantial evidence question that there
There can be no large land; tracts of had been dealer plaintiff was broker years trying had been for brothers the defendant and his any buy able so interest one land, their were unable to sell large body oJ:land. plaintiff The defendant plain- told be knew tiff it, could do is, tliat find plaintiff a purchaser, because knew the people and entree; he, the defendant, had on worked thing long- just so himself that it did not seem ifas took him seriously. “Q. you Now, say he, defendant, you told then bought land, give sold else, some one he would you one-half got, right No; of what he is that ? A. he said would ’’ give half per acre, me carrying charge. less the plaintiff evidence for the shows that in a little- while in getting succeeded Anderson and pur- interested in the chase land; began negotiations with the defendant which September continued until 27, 1919, when their two companies closed the deal with defendant, large tract of land conveyed to them purchase price, nearly three- quarters of a dollars, paid million to the Arcadia Timber Com- pany.
Appellant’s learned counsel cite v. Trost, Plummer 81 Mo. where it was (quoting syl. 2) held agreement : “An between the owner aof farm and another, by which latter and his wife conjunction together the owner shall work farm, proceeds joint of their work and labors to together, be shared *13 is a contract of partnership. It is not a contract for wages, hire and and cannot be sued on as such.” Phillips page
On 430, Judge said: arrangement “Was this anything more or than partnership less a farming together between the defendant sharing and husband for proceeds according production? the labor to per- is it How missible for in adopted the wife the form of action in this case to in recover view of quantum such a contract? action for is a meruit for the reasonable value of her services. It party is a true may quantum meruit, sue on a and the disclosure at the trial of a specific contract will not defeat Betts, his action. v. 80 [Mansur developed Mo. But the contract trial when on the will control 651.] recovery.” and limit the amount character of the 33 Corpus Juris, sharing In is 847, it said: not conclusive. “Profit provides sharing for a profits, The fact the contract of the while determining important an in character contract, factor of the joint adventure. does not of itself make There must participation something more, in enterprise; active some some subject-matter engaged property control or over thereof therein.” supra, appellant, agree- v. relied on Trost, Plummer involved an operate jointly profits, farm and divide is in ment point. appellant respect plaintiff said to Here the have a you if I Arcadia land and if contract for an acre sell this find a give you purchaser I will one-half of it. The and the de- 1170 fact, appellant’s separately pureliaser. find a In worked
fondant begun negotiations testimony is lie had with Anderson and Hoyt Hoyt, and that was not instrumental he knew before cooperation them making’ them; with there was no between deal testimony making' trial Appellant’s the deal. is'fatal Hoyt joint in the sale that he and were adventurers his contention land. ample testimony support the averments III. There negotiate A employed broker petition and verdict. transac frequently calls in the aid another with tion broker agrees to his commission. In case whom he ^jie divide such performs his if he ia^er entitled to his commission Dyas App. 584; Realty Co., J. Coffman v. 176 Mo. C. contract. [9 738, (3).] 292 704; Short, v. S. W. 740 One who em (9), Oaks 692 usually ploys purchaser compensation find a liable broker property regardless regardless of nature of his interest 586; it whatsoever. J. of whether not he has interest C. [9 291; Donog W. 705, 106 80 S. Neenan Enright Ford, App. v. Mo. v. 495; Vandenberg, 488, 157 App. Norman Mo. hue, 50 Mo. v. having jury And the found substantial evidence S. W. 47.] effecting “no land, instrumental the sale of plaintiff was deprive will him or fraud of his commission.’’ artifice, sort deceit O’Neill, v. Mo. l. c. S. W. [Corder 764.] reads: Plaintiff’s first instruction IY. jury that if and find court instructs the believe from
“The day January, 1919, 31st that on or .about the the defend evidence 13,445 represented for sale about ant belonging County, in Dunklin Missouri, acres of land Company, price of $55 the Arcadia Timber at the agreement a^so Arcadia an<^ Per acre> Timber Company by which he should a com receive as selling acre, carrying the sum of $5 said land less a mission *14 for each said charge per acre month from until a of cents time you made; if further and believe find from the sale should be plaintiff plain stated to the that if that the defendant the evidence finding purchaser in a lands the defendant said tiff would assist give plaintiff the one-half of the aforesaid com would the defendant find you believe and from the that mission; and if evidence further any, pimsuance proposition defendant, said of if thereafter, in of purchaser purchasers a find for said plaintiff undertook to the president ~W. plaintiff Anderson, did interest P. the lands, and that & Company, Lumber Mercantile and J. A. of G-ideon-Anderson the Hemphill Company, Lumber president pur- of the the Hemphill,
1171' lands; you chase of said and if find from the evidence that as a result plaintiff’s of efforts, any, if con- said lands were thereafter sold veyed Company to said Gideon-Anderson Lumber & Mercantile Company, plaintiff procur- Lumber and that the was the ing' sale; cause of such you your then if and believe, so find verdict for, plaintiff must be for the you such sum as find from the evidence to be the fair and plaintiff’s services, reasonable value of not exceeding, however, for; $20,167.50 amount sum of and if sued you find for plaintiff you may plaintiff so also allow the interest on the sum found, per so per at the rate of six annum from cent you date which pay- find from plaintiff the evidence the demanded ment you from the if defendant, find demand such was made.” Appellant assigns giving instruction, error that it is ^f confusing in starting express ending out on an contract in the fair and plaintiff’s reasonable value of services that it intimated jury to the proper the amount sued for was the fair and measure plaintiff’s the value of services. There is no merit this criticism. properly jury The instruction advised the effect that if found plaintiff they the issues for the should find for him the reasonable value of services, exceeding, his not however, sum sued for. Appellant
V. complains give recpiested of the refusal to his In- struction No. It reads: ‘‘ jury you The court if instructs the find and believe from the in January, plaintiff evidence that defendant told that he price question fifty-five land in had a on the dollars aer(3) get thereunder he per five dollars acre twenty-five thereof, carrying on the sale less cents acre month being charges, subject price raised at time before sale you made, was and if find further and believe from the evidence July, 1919, changed by the month was and that part price, reason if received no sale thereof defendant property find subsequently sold, cannot recover then ’’ your verdict will be for the defendant. This instruction was instructions num- covered the defendant’s 3, 4 5, given court, except
bered words italicized. by the general The defendant’s It admit answer denial. does not employment purchaser find a for the land ground it seeks avoid was a revocation of his em- there ployment. defense, In order admit the to make this should employment by pleading and avoid a revocation. Such a defense Moreover, is in the nature of a confession and defendant’s avoidance. required finding properly Instruction refused because it defendant, price. sale the defendant received *15 necessary any Appellant under contends that it view of jury plaintiff case for the have found that received a com- pecuniary that if mission or at least a direct benefit. We have seen finding in employed plaintiff pur- broker to assist the defendant as a performed contract, land and his of the chaser any he had interest in the defendant is liable on his whether contract or in- land or a commission for the sale of the land not. The received properly struction was refused. 7, given
YI. Appellant complains by of Instruction No. the court its own motion. It reads: ' proof jury is on the "The court instructs the burden by greater preponderance or establish weight necessary in evidence facts to a verdict favor under these instructions. "By proof’ ‘preponderance of the evi- the terms ‘burden ’
dence, court intends no reference to the number of witnesses tes- tifying concerning any any simply in fact, upon case, or issue by briefly way expressing law, uses rule of which those terms issue) your judg- in is, (as appears that unless the evidence to such respect preponderate credibility, outweigh, ment to or to its (as party proof favor of whom the biu’den of action on issue) rests, against party such find on said then such should ” issue. given proof. This is instruction burden of the usual form of on the given Trautmann, It is v. unlike the Trautmann instruction jury Mo. that the num S. W. which "in effect told the testifying upon given question ber of no con witnesses sequence and was not to be considered.” assigned giving
No error is as to the refusal of other instructions. point YII. appellant’s complains In one brief he error permitting "not the examination of the defendant’s by witness Hankins in the manner by followed defendant’s counsel
directing contrary attention to statements made tjiem ^y respective depositions.” their Ap pellant page refers to 25 of abstract of the record where the court objection question sustained asked on cross- by plaintiff examination as to certain deposition answers made his taken in objection the case. question When the was sustained only defendant’s counsel not exception saved but said: ‘‘All right.” The record Mr. shows that Hankins testified as a witness plaintiff, he was appellant cross-examined appellant offered deposition Hankins’ evidence Mr. *16 portions in evidence, exception read thereof saved that no ruling respect. to the court in that Appellant VIII. insists there was no evidence of the reasonable finding of plaintiff’s purchaser
value services in other than that of and that the evidence he testify relative thereto. The record n0£ qualified experience selling shows that testified as to his as a broker testimony land and respect objection. that his went without Appellant IX. contends that the verdict excessive that the jury reckoning in its erred of the interest. The verdict was rendered days years,
five month and four after the commission payable. Deducting carrying charge became due and per eight 0f 25 months, cents month for leaves the total commission on the sale of land acre. One-half at of this on 13,445 $20,167.50. acres would Septem Interest on sum from 1919, ber cent is $6050.25. date of verdict six worthy This makes the amount of the verdict. The laborer is his hire. fairly judgment
The case was tried, and the is affirmed. Da/vis and Hmwood, (7(7.,concur.
PER foregoing opinion by adopted Higbee, C., CURIAM: The opinion judges as the of the court. All concur. (2d) 777. Wheeler, Appellant. S. W.
The State v. John February Two, Division