130 Mo. App. 384 | Mo. Ct. App. | 1908
Defendant owned a part of lot 3, range 0, fronting twenty-eight feet on Main street in the city of Oape Girardeau. He had a stock of liquors and cigars and also saloon fixtures in a building on the lot. Wishing, to sell out he spoke to plaintiff about finding a purchaser and plaintiff interested M. W. Bran-nock in the property, who finally purchased it for $13,-060, of which $10,000 was for the house and lot and the remainder for the merchandise and fixtures. Plaintiff’s testimony proved defendant agreed to pay the reasonable value of plaintiff’s services if he found a buyer. There is evidence, too, that the compensation was to be $50, but plaintiff swore this was to be so in case he sold only the stock of saloon merchandise and the fixtures and not the lot and building. In the brief for defendant it is conceded there was evidence to prove,plaintiff was instrumental in bringing about the sale, but it is insisted he did so either as an act of friendship to plaintiff and with no expectation of payment, or that there was a contract fixing this compensation at fifty dollars; or, if there was no such contract, and defendant did not act from friendship,
It is insisted the court erred in refusing to instruct that if the jury found there was a contract of employment fixing the compensation plaintiff was to receive for the sale of the property at fifty dollars, the verdict must be for defendant. This instruction was asked on the theory that as plaintiff had sued in as-sumpsit for the reasonable value of his services, he could not recover if there was. a contract. Plaintiff might sue thus and recover though it turned out there was a contract, but his recovery could not exceed the contract price. [Veatch v. Norman, 95 Mo. App. 500, 508, 69 S. W. 472; Mansur v. Botts, 85 Mo. 651.] It is insisted again the instructions for plaintiff ignored the evidence tending to prove there was a definite contract regarding the sum plaintiff should receive as compensation. These instructions were predicated on testimony showing there was no stipulation in the agreement as to the amount, but, instead, that plaintiff should be paid fair and reasonable compensation. It was right for the court to give instructions predicated on said testimony and directing the jury, if they found
The judgment is affirmed.