Opinion
No. 29454.
October 26, 1931.
1. BROKERS.
In case of employment to sell, broker must find purchaser and also conclude negotiations for sale on terms authorized.
2. JUDGMENT.
Court improperly entered judgment for amount demanded under count respecting brokers' agreed compensation in disregard of amount fixed by jury under count upon quantum meruit.
APPEAL from circuit court of Washington county. HON. S.F. DAVIS, Judge.
Wynn Hafter, of Greeneville, for appellant.
There was no liability on appellant because the deal was not completed by the broker, but was completed by the owner. The owner did not approach the buyer, but the buyer made all the overtures to the owner. The time limit expired and broker ended all negotiations and left all parties, so far as he was concerned, or so far as his efforts were concerned, without any intention of making a trade.
Swain v. Pitts, 82 So. 305; Ferguson v. Quick, 79 So. 83.
Where there is an issue of fact submitted to a jury, and the jury returns a verdict upon that issue responsive to same, the contention cannot be maintained that a finding of a sum less than the full amount warrants the court in entering a judgment for the full amount sued for.
Hines v. Lockhart, 105 So. 449.
The judge cannot, under the guise of amending the verdict, invade the province of the jury, or substitute his verdict for theirs. After the amendment, the verdict must be, not merely what the judge thinks it ought to have been, but what the jury intended it to be. Their actual intent, and not his notion of what they ought to have intended, is the thing to be expressed and worked out by the amendment.
27 R.C.L., page 887, sec. 62.
Percy, Strauss Kellner, of Greenville, for appellees.
Where the terms of the sale are not specified in a contract between the principal and the broker and the actual sale is made by the principal, still the broker has performed his contract when he produces a purchaser to whom the principal sells.
Delta Pine Land Co. v. Wallace, 83 Miss. 656; Johnson v. Sutton, 94 Miss. 544; Jenny v. Smith-Powell Realty Co., 125 Miss. 608; Cook v. Smith, 119 Miss. 375; Roell v. Offutt, 138 Miss., 599.
Verdicts although not formal, yet if they are substantially good, may be molded into proper form.
Montgomery v. Tillison, 1 Howard, 215.
It is sufficient if a verdict be substantially good; it may then be molded into proper form by the court.
Horgart v. Montgomery, 6 Howard, 93.
The court had a right to treat the verdict of the jury as divisible and sustain on the question of liability and correct it as to the amount.
Fowles v. Hardin, 109 Miss. 318; Stone-Lowe Cotton Co. v. Weil Bros., 129 Miss. 60; Henry v. Elkin, 156 Miss. 136; Ruffin v. Schwabacher, Ltd., 156 Miss. 326.
Argued orally by Jerome Hafter and J.A. Lake, Jr., for appellant, and by Ernest Kellner, for appellee.
Appellees, real estate brokers, sued appellant for the compensation claimed by them, as a result of a real estate sale, which, as the evidence shows, was consummated, not by the brokers, but by appellant direct with the purchaser. There are two counts in the declaration. The first count declared that appellees were employed to sell the property and that they did sell the same, whereby they earned the agreed compensation for the said sale services of two dollars and fifty cents per acre, amounting to two thousand fifteen dollars. The second count is upon the quantum meruit, and the allegations thereof are sufficient to admit the evidence and a finding to the effect that the employment was to find a purchaser, and that a purchaser was thereupon procured by appellees; that appellees were the procuring cause in a sufficient legal measure to admit of recovery in a just amount on the quantum meruit, although the transaction was not handled to a conclusion by appellees, and was in fact afterwards concluded by and between appellant and the purchaser, on different terms.
There is an important distinction between the employment of a broker to sell and the employment to find a purchaser or to procure a purchaser. In the case of the employment to sell, the broker must not only find the purchaser, but must conclude the negotiations for the sale on the terms authorized by the seller, leaving nothing for the seller to do but carry out the said terms of the sale. The importance of this distinction is pointed out in Handley v. Shaffer, 177 Ala. 636, 653, 59 So. 286. See, also, Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011, and the authorities therein cited. This rule has its foundation in the obvious reason that an owner would be well willing to pay a higher compensation and a compensation fixed at a definite figure for the higher service by which the broker completes the entire negotiation leaving the seller with nothing to do but to execute the authorized terms of the transfer, as against the inferior employment to find a purchaser, with whom the seller must negotiate and come to terms, especially where the terms finally agreed upon, as in the instant case, were different from those which the broker was authorized to accept.
Applying the rule, as first above stated, the testimony in this case discloses clearly that appellees have not brought themselves within the first count of their declaration; namely, that their employment was to sell and that they did sell. And evidently the jury by their verdict did not find with appellees on the said first count, because the verdict was for four hundred fifty dollars, which manifestly must be taken as having been found under the second count which, as stated, was on the quantum meruit. It follows therefore that the court was in error in entering judgment for the two thousand fifteen dollars demanded under the first count, and in disregarding the amount, four hundred fifty dollars, fixed by the jury in their verdict.
No specific evidence was introduced upon the amount proper to be allowed under the quantum meruit count, and we have been at some difficulty in determining whether there is sufficient evidence in the record to sustain the verdict as to the amount found. We have concluded, however, that, taking all the facts into consideration together with the fair and reasonable inferences to be drawn therefrom, there was sufficient upon which the jury could arrive at the amount found by them, and a judgment will therefore be entered here upon the verdict and for the amount fixed therein, with legal interest from the date of that verdict.
Reversed, and judgment here.