83 Kan. 489 | Kan. | 1910
The opinion of the court was delivered by
J. H. Mercer sued A. L. Morrison for a. commission upon the sale of real estate and recovered a judgment, from which an appeal is taken.
The defendant’s principal contention is that the evidence showed conclusively that the sale was not procured or influenced by the plaintiff. There was evidence that the buyer’s attention was first called to-the land by the plaintiff, who recommended its purchase ; that later he was again approached by him, and considered the proposition more favorably all the time,
The plaintiff testified to an agreement that he should receive $1000 if he made a sale for $22,000. The defendant said that he had promised a commission of ■$1000 only in case he received $25,000. The court instructed the jury in substance that if they accepted the defendant’s version of the contract they might return a verdict for the plaintiff for four per cent of $22,000, which was the actual selling price. This instruction is complained of upon the ground that a promise to pay $1000 on a sale for $25,000 does not imply an agreement to pay a like percentage of the ■selling price if a buyer is accepted at a lower figure. ■Granting this, it does not follow that the judgment ■should be reversed. The verdict was for $1000, which conclusively'shows that the jury took the plaintiff’s view of the contract. If they had followed the defendant’s testimony they would necessarily, under this instruction, have placed the amount of recovery at $880. An erroneous instruction is not ground of reversal where it is clear that the jury did not act upon it. (C. K. & W. Rld. Co. v. Parsons, 51 Kan. 408; Whitney v. Brown, 75 Kan. 678; 4 Enc. L. & P. 503.) Usually where this principle has been applied the fact of non-prejudice has been shown by a special finding, but the general verdict may be equally effective for the pur
■ The appellee has filed a counter abstract. We find, however, that the appellant’s abstract sets out, in a properly condensed form, all the matters necessary for the determination of the questions presented. Some testimony was omitted, but so far as.otherwise important it was merely repetition, and therefore could not aid in deciding whether there was any evidence to ■support the verdict. Not all of the charge to the jury was printed, but so much of it as related to the questions here at issue was set out in full.
The judgment is affirmed, but costs will not be allowed for printing the counter abstract.