138 Mo. 618 | Mo. | 1897
This is an action for compensation for personal services rendered by plaintiff for defendant in and about the appraisement of certain property which it holds in trust as a charitable fund to furnish relief to all poor emigrants and travelers coming to St. Louis bona fide to settle in the west.
The; amount sued for was $3,250. The amount for which plaintiff recovered a verdict before a jury was $1,188. He then filed his motion for a new trial, which was overruled and he appealed.
In 1851, one Bryan Mullanphy died testate. By his will he devised one third of all his property, real, personal, and mixed, to the city of St. Louis in trust, to be and constitute a fund to furnish relief to all poor
The city accepted the trust, and by ordinance created a board called the “Board of Commissioners of the Mullanphy Emigrant Relief Fund” to carry out the purposes of the testator.
The board desiring to have the trust property appraised, on September 13, 1893, employed the plaintiff, Charles Oreen, andT. J. Quinn, as such appraisers. No agreement was made as to the compensation that they were to receive for their services.
The property to be examined and appraised was in the city of St. Louis. There was evidence tending to show that the appraisers were informed that they might hire carriages to take them to the property, a clerk to assist them in their work and a surveyor to locate the property.
For these services a bill for carriage hire amounting to $200, a surveyor’s bill of $800, and a bill of $2,400 for services alleged to have been rendered by the clerk of the appraisers. This bill the board declined to pay upon the ground that it was contracted without authority from the board, and declined to pay the amount demanded by the appraisers upon the ground that the same was excessive.
Plaintiff was at the time of his appointment a real estate agent in said city. The time consumed in making the appraisement, report, etc., was two hundred and twenty-eight days. The plaintiff and eleven other witnesses, including the appraisers, Quinn and Green, testified in his behalf and estimated the value of the services rendered by plaintiff at $3,250, while five witnesses who testified in behalf of defendant estimated them at from $1,000 to $1,200.
At the instance of the plaintiff the ¿court gave to the jury the following instruction:
*624 “1. The court instructs the jury to find for the plaintiff Leon L. Hull, and to assess his compensation at such sum as from the evidence before them the jury may believe his services to have been reasonably worth.”
The court refused to give to the jury the following instruction:
“2. In estimating the reasonable value of plaintiff’s services, the jury may take into consideration the evidence showing plaintiff’s experience as a real estate agent in the city of St. Louis, at the time when the services were rendered, the compensation at the time usually paid to, and received by, competent real estate agents of said city for like services, the character and amount of property examined and appraised by plaintiff, the services actually performed in making-such examination and appraisement, and time consumed therein, and also the reasonable opinions of expert witnesses who have testified upon this trial, as well as all other facts and circumstances shown in the evidence bearing on plaintiff’s services, and the reasonable value thereof when rendered.”
The court, of its own motion, gave to the jury the following instruction:
“3. In estimating the reasonable value of plaintiff’s services the jury may take into consideration the evidence showing plaintiff’s experience as a real estate agent of the city of St. Louis at the time when the services were rendered, the character and amount of property examined and appraised by plaintiff, the services actually performed in making such examination and appraisement, and time consumed therein, and also the reasonable opinions of expert witnesses who have testified upon this trial, as well as all other facts and circumstances shown in the evidence bearing on plaintiff’s,services, and the reasonable value thereof when rendered.”
“4. The court instructs the jury that they are not bound to accept the opinion of expert witnesses as to the value of plaintiff’s services, but may give said opinions such weight to which -the jury may deem them entitled, or altogether disregard such opinions, if the jury, from all the facts and circumstances in evidence, believe said opinions unreasonable.
“5. The court instructs the jury that if they find their verdict for the plaintiff, they will allow him only the reasonable value of such services as the evidence may show he performed for defendant, and no more.” To the action of the court in refusing the second instruction asked by plaintiff, in giving the third instruction of its own motion, and in giving the fourth and fifth instructions on motion of defendant, plaintiff at the time objected, and saved his exceptions.
The first assignment of error is the action of the court in modifying the second instruction asked by plaintiff, and eliminating therefrom the following: “The compensation at the time usually paid to and received by competent real estate agents of said city for .like services.”
The vice of the instruction as asked was in assuming that there was a rule as to the amount of compensation usually paid to and received by real estate agents of the city of St. Louis for like services, when the evidence was conflicting with respect to the existence of such a rule. It is only where the facts are not disputed, or the evidence is all one way, that such an instruction is proper. Fullerton v. Fordyce, 121 Mo. 1; Van Natta v. Railroad, 133 Mo. 13. Moreover, if the instruction, as given, was considered by the jury in connection with the first instruction, as was doubt
We do not, however, mean to be understood as holding that personal services requiring the exercise of judgment and skill have a marketable value, but that each case must depend upon the capacity and skill of the person rendering the services, their nature and extent.
It is contended by plaintiff that the court erred in giving the fourth instruction at the request of defendant, by which the jury were authorized to disregard the opinions of the expert witnesses, “as to the value of plaintiff’s services.” But the jury were only authorized to disregard such opinions if they believed from all the facts and circumstances in evidence they were unreasonable.
With this qualification- it is argued by defendant that if the testimony of the expert witnesses were believed by the jury to be unreasonable, they could do nothing else but disregard the same, that is, attach to it no value, weight or credit, and that is all the jury were authorized to do by that instruction.
Since an opinion was handéd down in this cause reversing the judgment and remanding the cause solely upon the ground that error was committed in giving that instruction, our attention has been called in a motion filed by defendant for a rehearing to the case of City of St. Louis v. Ranken, 95 Mo. 189. In that case an instruction, in all of its essential features exactly like the one under consideration, was passed upon and approved.
“The court instructs the jury that, in determining the amount, if any, that defendant’s property is benefited by the widening of Eighteenth street, as shown on this trial, the testimony of the expert witnesses, who testified before them, if deemed unreasonable by the jury, may be disregarded by them.”
The court said:
“The jury are the judges of the value, weight and credibility of the evidence, and if they regarded the testimony of the expert witnesses, on either side of the c'ase, as unreasonable, we do not see what else they could do except to disregard the same — that is, attach to it no value, no weight or credit, and this is all the jury are authorized to do by the said instructions. The instruction in the City of Kansas v. Hill, 80 Mo. 534, to which we have been referred, told, the jury, among, other things, that they were not bound to find according to the evidence, but might wholly disregard the same and make their finding from their own observation alone, and was condemned by this court for that reason. It is there said, among other things, that it would seem a farce to introduce evidence, if it may be wholly disregarded. * * * We do not say or intimate what weight or importance the jury may or ought to give the proof so submitted, but when submitted we think it is their duty to consider, and not wholly disregard it. The instruction in this case is obviously different. The jury are not told that they may disregard the evidence of the experts, but are, in effect, told to consider the evidence, and are left at liberty to disregard such as, upon consideration, they believe to be unreasonable.”
That case has never been overruled and must be followed in this.
Erom these considerations, it follows that the judgment must be affirmed. It is so ordered.