dence showed a written contract whereby the defendant agreed to pay a brokerage fee of $500 if the plaintiff sold certain real estate, or a reasonable commission if the property was sold to anyone whom the plaintiff had negotiated with. In an action to recover $500 on the contract for procuring a party ready and willing to purchase the real estate, a verdict of $250 was returned. It was held that the inadequacy of the verdict could not be objected to by the defendant.

The rule was applied in Thayer v. Holley (1922) 90 W. Va. 525, 111 S. E. 326, an action for commissions, the court saying: "The amount of the verdict is exactly 5 per cent of the net price stipulated to be paid defendant for the timber. It is possible the jury may have concluded that under the circumstances this sum would sufficiently compensate the plaintiff. But we cannot say this was the basis of their verdict. On the contrary, they might have found the full amount claimed by plaintiff. That they found a less sum defendant cannot complain, and plaintiff does not complain of the verdict. In such a case this court will not be justified in disturbing the verdict."

The appellant in Sutro v. Easton (1900) 130 Cal. 339, 62 Pac. 558, complained that the jury rendered a verdict against him for an amount less than was warranted by the evidence. It appeared that a verdict for one half of certain commissions earned would have been warranted by the contentions of the appellee, although the verdict fixing the share at one third was in harmony with the evidence introduced by the appellant. It was held that the appellant could not complain that the jury based the verdict on the theory most favorable to him, and that there was no error to warrant a new trial.

In Gaynor v. Clements (1891) 16 Colo. 209, 26 Pac. 324, the defendants contended that the verdict for $1,000 was inconsistent with the evidence in any proper view. It appeared that the defendants, by express contract, agreed to pay the plaintiff a commission of 5 per cent for selling horses.

The total commissions at that rate amounted to $1,500. It was held that the defendants could not take advantage of the inadequacy, the court saying: "If the verdict be erroneous simply on the ground that it is for a less sum against defendants than was warranted by the evidence, such error cannot be said to be one affecting their substantial rights. Hence, the judgment should not be reversed merely on the ground of such error. . . The plaintiff below was the only party prejudiced by the insufficiency of of the damages awarded, and he is not complaining on this appeal."

A similar decision was handed down in Stiewel v. Lally (1909) 89 Ark. 195, 115 S. W. 1134, an action to recover commissions alleged to be due on the sale of a coal mine under a written contract. The record showed that the plaintiffs claimed $100,000, but the jury rendered a verdict for $9,700. On appeal the defendant complained that the inadequacy of the plaintiffs' verdict was error. The court said: "The amount of the verdict is for a less sum than appellees were entitled to under the instructions, if they were entitled to a verdict at all, but appellant cannot complain of this. The jury were doubtless influenced to find for the smaller sum, because one of appellees expressed, in a letter written to appellant after the consummation of the sale, his willingness to accept a commission of 21 per cent on the purchase price. But, as we have said, appellant cannot complain of this leniency shown him by the jury."

It was held in Wofford v. De Queen Real Estate Co. (1919) 141 Ark. 310, 216 S. W. 710, that the appellant could not complain that the appellees were entitled to $1,500 in commissions, instead of only $400.

In Wolf v. Goodhue F. Ins. Co. (1864) 43 Barb. (N. Y.) 400, affirmed in (1865) 41 N. Y. 620, an action brought to recover on a fire insurance policy, it appeared that the preliminary proofs of loss alleged the loss to be $3,041.36. The defendant's proof tended to show that the statement

was fraudulent and did not entitle the plaintiff to a recovery. The verdict rendered was in the sum of $412.27. The defendant claimed that such a small verdict showed the issue settled in its favor, and that the amount was the result of compromise. The court held that there was no compromise, and that the defendant could not complain of the inadequacy of the plaintiff's verdict.

Kelly v. Utica F. Ins. Co. (1922) 203 App. Div. 335, 196 N. Y. Supp. 795, supports the doctrine that an appellant cannot complain of the fact that the verdict against him is too small. The action was brought to recover on a fire insurance policy. The evidence would have justified fixing the fire loss at $800, the full amount of the policy, but the jury fixed the loss at $500 by its verdict, and it was held that the insurer could not complain.

It was similarly held in Bammessel v. Brewers' F. Ins. Co. (1877) 43 Wis. 463, that the recovery in an action on a fire insurance policy could not be objected to by the insurance company on the ground that the evidence entitled the plaintiff to the full amount of the policy, if he was entitled to recover at all.

The same rule was applied in National Live Stock Ins. Co. v. Cramer (1916) 63 Ind. App. 211, 114 N. E. 427, an action to recover $500, the amount of an insurance policy. The plaintiff received and accepted a verdict for $381.72. On appeal, the defendant complained of the fact that the verdict was less than the amount to which the policy entitled the plaintiff. The court said that the appellant was not in a position to object to the lesser verdict, of which the plaintiff failed to complain.

The rule declared in Reid v. Houston (1886) 20 Ill. App. 48, was that the defendant could not be heard to assign as error that the amount of damages assessed against him in an action on an express contract was too small. The evidence on the trial tended to show that the plaintiff was entitled to a recovery of $531.69. The jury returned a verdict for $375.

It was said in Harrison v. Murphy

(1904) 106 Mo. App. 465, 80 S. W. 724, an action on an express contract: "The plaintiff, under the instructions and the evidence, might have recovered $300 instead of $200, yet we cannot say that it necessarily follows that the finding was based on quantum meruit and unauthorized. The plaintiff, and not the defendants, can complain that the verdict was against them for a less amount than the pleadings and evidence authorized." "If the court by mistake or error rendered a judgment based upon a lesser quantity [of sales], it insured to the benefit of the appellant, and cannot be reversed at appellant's instance." N. K. Fairbank Co. v. Belcher Cotton Oil Co. (1899) 81 Mo. App. 523.

Where the jury awarded a verdict of $90 on a claim for $100 arising on an alleged contract to purchase a certain colt, the court refused to disturb it at the instance of the defendant, and stated the rule as follows: "That the amount of the verdict was less than it should have been, if any was proper, is no ground for complaint by defendant." McKinzie v. Stretch (1893) 53 Ill. App. 184.

In Seymour & Co. v. Perry (1922) 118 S. C. 265, 110 S. E. 389, wherein it appeared that the verdict was for only $500, while the evidence tended to prove that the loss from breach of contract was $1,020, it was held that the defendant could not complain.

In Evans v. Koons (1894) 10 Ind. App. 603, 38 N. E. 350, the court said: "It is insisted, in argument by the appellant's counsel, that there is no evidence to sustain a verdict for $10; that under the evidence the appellee was entitled to recover $25, if anything at all, and that, as there is no basis for a verdict of $10, the latter is contrary to law, and not supported by the evidence. In our opinion this argument is not tenable. If there was evidence upon which a verdict for $25 could have been upheld, it is not within the appellant's power to claim that the verdict was not for a sufficiently large amount."

It was held in Paulk v. South Georgia Bldg. & Invest. Co. (1922) 152 Ga. 646, 111 S. E. 26, that a surety for the plaintiff could not object that the verdict awarded single rent, and not double rent, to the defendants on their counterclaim.

Tex.

In Daniels v. Garrett (1922) Civ. App., 239 S. W. 1118, an action to recover damages for breach of contract to convey real estate, the record showed that the jury awarded $1,250 instead of the $2,000 claimed by the plaintiff. The court said: "Appellant cannot take advantage of the fact that the judgment rendered against him is for an amount less than was established by the proof. Plaintiff below, who appeals because of inadequacy of the verdict, is entitled to relief in a proper case, but not so the defendant."

It was held in Seattle Brewing & Malting Co. v. Donofrio (1904) 34 Wash. 18, 74 Pac. 823, that the defendant had no ground of complaint that the plaintiff's recovery for a breach of contract was for an amount less than the evidence showed was due, for the reason that error, to be available, must be prejudicial to the party complaining.

Where it appeared that the jury, following the court's instructions relative to the measure of damages, rendered a verdict against the appellant for an amount much less than the contract called for, the holding was to the effect that the error was not one of which the appellant could complain. Corbett v. Sayers (1902) 29 Tex. Civ. App. 68, 69 S. W. 108, an action to recover for breach of contract to purchase.

the verdict, being for less than was claimed, constituted error. The court held that the error, if any, was harmless to the defendant, and could not be taken advantage of as a ground for a new trial, saying: "The complaint, it is true, alleges that the services were performed, that they were of the fair and reasonable value of $324.31, and that the defendant had promised and agreed to pay; but this was not a liquidated claim; it did not pretend to be. The defendant is not aggrieved by the fact that the jury cut down the claim $24.31. It does not show such a compromise as to discredit the action. of the jury. The rule, we believe, is that the defendant cannot complain because the plaintiff did not recover against him as large a verdict as he was entitled to, unless the amount of the verdict shows that the jury, in determining the case, either wholly disregarded the evidence, or misapprehended its effect, or overlooked some important fact, or must have necessarily found some fact in favor of the defendant which is wholly inconsistent with a verdict for any amount in favor of the plaintiff."

It was contended by the defendant in Kawfield Oil Co. v. Braymer Drilling Co. (1923) 287 Fed. 713, an action in assumpsit on a quantum meruit for services rendered in drilling an oil well, that the inadequacy of the plaintiff's verdict was error. The evidence showed that the work of drilling was worth $7,155, that the loss of the rent of tools while the drilling operations were shut down by the defendant was $1,725, and that the work of fishing for the casings put into the well was reasonably worth $1,600-making a total claim of $10,480. However, the jury rendered a verdict for only $8,158.75, to which the defendant objected. The decision of the court was to the effect that, although the evidence would have sustained a larger verdict, the error was in no way prejudicial to the defendant, and therefore not a matter of which that party could complain.

In Crigler v. Duncan (1906) 121

Mo. App. 381, 99 S. W. 61, the defendant urged that the judgment should be reversed because the jury returned a verdict for an amount less than that to which the evidence showed the plaintiff entitled. The action was brought to recover money had and received. The evidence tended to show that the amount due the plaintiff was $733.33, but the jury fixed the recovery at $500. In denying the defendant's request for a new trial, the court distinguished the present case from cases cited by the appellant, and held that, the action being for money had and received, and not based on an express contract, the general rule should be applied, to the effect that the defendant could not be heard to complain that the jury fixed the amount of the plaintiff's recovery below what it should have been.

In Alder v. Crosier (1917) 50 Utah, 437, 168 Pac. 83, wherein the jury returned a verdict for the value of services rendered in an amount much less than was due, according to the only testimony bearing on that issue, it was held that the appellant could not complain of the inadequacy of the verdict rendered against him, and thereby take advantage of a harmless

The courts have held that, where the verdict was manifestly lessened by the allowance of a counterclaim, set-off, or partial defense, the appellant cannot complain that the appellee should have have received a larger verdict.

In the case of McDonald v. Klenze (1916) 52 Mont. 142, 157 Pac. 175, an action to recover the principal and interest on two promissory notes, the defendant introduced evidence which had the effect of a set-off. On complaint of the defendant that the plaintiff's verdict should have been for the full amount demanded or nothing, the court said: "Counsel insist that the plaintiff

ought to have recovered the whole amount demanded, or nothing, and hence that the verdict must have been the result of a compromise, and for this reason may not be allowed to

stand.. . The evidence is exceedingly conflicting. . . The jury having found the issues for the plaintiff, and made their award at a much less amount than they otherwise might, the result did not prejudice the defendant. If the plaintiff is willing to accept it, the defendant ought not to be heard to complain, because the advantage is pro tanto his. It is not infrequently the case that juries return such verdicts as we have here. If the party who suffers is willing to abide their action without complaint, the complaint of the other party that there has been a mistrial ought not to be heard with indulgence."

In Lee v. Merrick (1859) 8 Wis. 229, the plaintiff sued to recover for work, labor, and services rendered as foreman of the defendants' brickyard. He set up an express contract providing for compensation at the rate of $100 per month. The defendants claimed that their agreement was to pay what the services were worth, and that the plaintiff left the employment of his own free will. Evidence was also produced tending to show damages suffered by the defendants, and part payment of the wages due the plaintiff. The court instructed the jury that "if they found the defendants agreed to give the plaintiff $100 per month for his services, they should find for that amount, less what had been paid him, and if they found no special agreement as to the amount per month, then they should allow the plaintiff what his services were worth, deducting the amount paid, and if they found that the plaintiff hired out to the defendants for the brick-making season, and left the employ of the defendants before the expiration of the season, without their consent, that then they should allow him whatever his services were worth, after deducting the damages, if any, sustained by the defendants by reason of his leaving before the expiration of the season." The jury rendered a verdict in favor of the plaintiff for $280. The defendants claimed that the verdict was wrongfully rendered on a quantum meruit

basis, whereas the action relied on the express contract, and that the plaintiff's verdict was less than was due him. The court held that the error, if any existed, was injurious to the plaintiff alone, and was not a ground of complaint on the part of the defendants. The court also indicated that the nature of the evidence was such that the jury might have allowed the set-off and defense offered by the defendants, thereby accounting for the alleged compromise verdict.

In Smith v. Railroad Employees' Development Co. (1917) - Tex. Civ. App., 195 S. W. 220, an action to recover for the value of labor and services rendered on a contract to drill an oil well, the court held that the appellant had no right to complain that the appellee received a verdict for only one half of the sum claimed and supported by undisputed proof. The claim was for $1,178 and the verdict was for $589. The appellant argued that the size of the verdict indicated that some of the jurors did not believe a recovery should be had, and that the verdict found was a compromise. The court said that there was evidence which might justify a set-off, and that the verdict was not necessarily a compromise. The general rule was thereupon applied, to the effect that "appellant cannot take advantage of the fact that the verdict and judgment rendered against him is for an amount less than was established by the proof."

c. Liquidated claim.

1. Court instructions.

View that appellant may complain.

In actions on contract to recover a liquidated amount, the courts are divided in their view as to whether the defeated party can complain that the jury rendered a verdict for a sum less than that required by the instructions of the court, but the weight of authority favors the view that the party against whom the inadequate verdict is rendered may object. Stetson v. Stindt (1922) 23 A.L.R. 302, 279 Fed. 209; Jensen v. Duvall (1921) 192 Iowa, 960, 185 N. W. 584; Peter

son v. Patrick (1879) 126 Mass. 395; Alden v. Sacramento Suburban Fruit Lands Co. (1917) 137 Minn. 161, 163 N. W. 133; H. B. Smith Co. v. Chapin (1891) 38 N. Y. S. R. 463, 13 N. Y. Supp. 799; Fuld v. Kahn (1893) 4 Misc. 600, 24 N. Y. Supp. 558; Metz v. Campbell Printing Press & Mfg. Co. (1895) 11 Misc. 284, 32 N. Y. Supp. 155; Feldman v. Levy (1907) 56 Misc. 563, 106 N. Y. Supp. 1092.

That view was adopted in the case of Stetson v. Stindt (Fed.) supra. The action was brought to recover the unpaid balance of principal and interest due on a promissory note. Undisputed evidence showed the amount to be $56,990.70. The court instructed the jury to find for that amount if they found in favor of the plaintiff, but the jury, in apparent disregard of the instruction, rendered a verdict for $27,439.42. This is urged as error in the present appeal. The court said: "A verdict like the one under consideration, which is perverse and directly violative of the charge of the court, and is wholly without evidence to support it, cannot stand. It is not sufficient to say that the defendant cannot complain because he was not injured.

That liability might be for more than the jury found; yet it might be for nothing. What his liability is, the jury refused to say; but said something else, which, under the law and on the facts, was simply untrue."

In H. B. Smith Co. v. Chapin (1891) 38 N. Y. S. R. 463, 13 N. Y. Supp. 799, the court took this view. Under the instructions the jury were limited to finding either $500 for the defendant, or the balance of $405.80 for the plaintiff. The jury found for the defendant, but without awarding the $500. It was held that it was error for the jury to disregard the court's instructions, and that either party had a right to a new trial.

It was held in Jensen v. Duvall (1921) 192 Iowa, 960, 185 N. W. 584, that either the plaintiff or the defendant could raise the objection that the jury rendered an inadequate verdict, contrary to the evidence and the instructions of the court. It ap