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dence showed a written contract The total commissions at that rate whereby the defendant agreed to pay amounted to $1,500. It was held a brokerage fee of $500 if the plaintiff that the defendants could not take sold certain real estate, or a reason- advantage of the inadequacy, the court able commission if the property was saying: “If the verdict be erroneous sold to anyone whom the plaintiff had simply on the ground that it is for negotiated with. In an action to re- a less sum against defendants than cover $500 on the contract for pro- was warranted by the evidence, curing a party ready and willing to such error cannot be said to be one purchase the real estate, a verdict of affecting their substantial rights. $250 was returned. It was held that Hence, the judgment should not be the inadequacy of the verdict could reversed merely on the ground of not be objected to by the defendant.

such error. . . The plaintiff beThe rule was applied in Thayer v. low was the only party prejudiced by Holley (1922) 90 W. Va. 525, 111 S. the insufficiency of the damages E. 326, an action for commissions, awarded, and he is not complaining the court saying: "The amount of the on this appeal.” verdict is exactly 5 per cent of the A similar decision was handed net price stipulated to be paid de- down in Stiewel v. Lally (1909) 89 fendant for the timber. It is possible Ark. 195, 115 S. W. 1134, an action the jury may have concluded that to recover commissions alleged to be under the circumstances this sum due on the sale of a coal mine under would sufficiently compensate the written contract. The record plaintiff. But we cannot say this was showed that the plaintiffs claimed the basis of their verdict. On the $100,000, but the jury rendered a vercontrary, they might have found the dict for $9,700. On appeal the defull amount claimed by plaintiff. fendant complained that the inadeThat they found a less sum defend- quacy of the plaintiffs' verdict was ant cannot complain, and plaintiff error. The court said: “The amount does not complain of the verdict. In of the verdict is for a less sum than such a case this court will not be appellees were entitled to under the justified in disturbing the verdict.” instructions, if they were entitled to

The appellant in Sutro v. Easton a verdict at all, but appellant cannot (1900) 130 Cal. 339, 62 Pac. 558, com- complain of this. The jury were plained that the jury rendered a ver- doubtless influenced to find for the dict against him for an amount less smaller sum, because one of appellees than was warranted by the evidence. expressed, in a letter written to apIt appeared that a verdict for one pellant after the consummation of half of certain commissions earned the sale, his willingness to accept a would have been warranted by the commission of 23 per cent on the purcontentions of the appellee, although chase price. But, as we have said, the verdict fixing the share at one appellant cannot complain of this third was in harmony with the evi- leniency shown him by the jury." dence introduced by the appellant. It was held in Wofford v. De Queen It was held that the appellant could Real Estate Co. (1919) 141 Ark. 310, not complain that the jury based the 216 S. W. 710, that the appellant verdict on the theory most favorable could not complain that the appellees to him, and that there was no error were entitled to $1,500 in commisto warrant a new trial.

sions, instead of only $400. In Gaynor v. Clements (1891) 16 In Wolf v. Goodhue F. Ins. Co. Colo. 209, 26 Pac. 324, the defendants (1864) 43 Barb. (N. Y.) 400, affirmed contended that the verdict for $1,000 in (1865) 41 N. Y. 620, an action was inconsistent with the evidence in brought to recover on a fire insurance any proper view. It appeared that the policy, it appeared that the prelimidefendants, by

express contract, nary proofs of loss alleged the loss to agreed to pay the plaintiff a commis- be $3,041.36. The defendant's proof sion of 5 per cent for selling horses. tended to show that the statement was fraudulent and did not entitle (1904) 106 Mo. App. 465, 80 S. W. the plaintiff to a recovery. The ver- 724, an action on an express contract: dict rendered was in the sum of “The plaintiff, under the instructions $412.27. The defendant claimed that and the evidence, might have resuch a small verdict showed the is- covered $300 instead of $200, yet we sue settled in its favor, and that the cannot say that it necessarily follows amount was the result of compromise. that the finding was based on quanThe court held that there was no com- tum meruit and unauthorized. The promise, and that the defendant could plaintiff, and not the defendants, can not complain of the inadequacy of complain that the verdict was against the plaintiff's verdict.

them for a less amount than the Kelly v. Utica F. Ins. Co. (1922) 203 pleadings and evidence authorized." App. Div. 335, 196 N. Y. Supp. 795, If the court by mistake or error supports the doctrine that an appel- rendered a judgment based upon a lant cannot complain of the fact that lesser quantity [of sales], it insured the verdict against him is too small. to the benefit of the appellant, and The action was brought to recover on cannot be reversed at appellant's ina fire insurance policy. The evidence stance.” N. K. Fairbank Co. v. would have justified fixing the fire Belcher Cotton Oil Co. (1899) 81 Mo. loss at $800, the full amount of the App. 523. policy, but the jury fixed the loss at Where the jury awarded a verdict $500 by its verdict, and it was held of $90 on a claim for $100 arising that the insurer could not complain. on an alleged contract to purchase

It was similarly held in Bammessel a certain colt, the court refused to v. Brewers' F. Ins. Co. (1877) 43 Wis. disturb it at the instance of the de463, that the recovery in an action fendant, and stated the rule as folon a fire insurance policy could not lows: “That the amount of the verbe objected to by the insurance com- dict was less than it should have pany on the ground that the evidence been, if any was proper, is no ground entitled the plaintiff to the full for complaint by defendant." Mcamount of the policy, if he was en- Kinzie v. Stretch (1893) 53 Ill. App. titled to recover at all.

184. The same rule was applied in In Seymour & Co. v. Perry (1922) National Live Stock Ins. Co. v. Cramer 118 S. C. 265, 110 S. E. 389, wherein (1916) 63 Ind. App. 211, 114 N. E. 427, it appeared that the verdict was for an action to recover $500, the amount only $500, while the evidence tended of an insurance policy. The plaintiff to prove that the loss from breach received and accepted a verdict for of contract was $1,020, it was held $381.72. On appeal, the defendant that the defendant could not comcomplained of the fact that the verdict

plain. was less than the amount to which In Evans v. Koons (1894) 10 Ind. the policy entitled the plaintiff. The App. 603, 38 N. E. 350, the court court said that the appellant was not said: "It is insisted, in argument in a position to object to the lesser by the appellant's counsel, that there verdict, of which the plaintiff failed is no evidence to sustain a verdict to complain.

for $10; that under the evidence the The rule declared in Reid v. Hous- appellee was entitled to recover $25, ton (1886) 20 Ill. App. 48, was that if anything at all, and that, as there the defendant could not be heard to is no basis for a verdict of $10, the assign as error that the amount of latter is contrary to law, and not supdamages assessed against him in an ported by the evidence. In our opinaction on an express contract was ion this argument is not tenable. If too small. The evidence on the trial there was evidence upon which a vertended to show that the plaintiff was dict for $25 could have been upheld, entitled to a recovery of $531.69. The it is not within the appellant's power jury returned a verdict for $375.

to claim that the verdict was not for It was said in Harrison v. Murphy a sufficiently large amount."

It was

held in Paulk v. South the verdict, being for less than was Georgia Bldg. & Invest. Co. (1922) claimed, constituted error. The court 152 Ga. 646, 111 S. E. 26, that a sure- held that the error, if any, was harmty for the plaintiff could not object less to the defendant, and could not that the verdict awarded single rent, be taken advantage of as a ground and not double rent, to the defend- for a new trial, saying: “The comants on their counterclaim.

plaint, it is true, alleges that the In Daniels v. Garrett (1922) Tex. services were performed, that they Civ. App. —, 239 S. W. 1118, an ac- were of the fair and reasonable valtion to recover damages for breach of ue of $324.31, and that the defendant contract to convey real estate, the rec- had promised and agreed to pay; but ord showed that the jury awarded this was not a liquidated claim; it $1,250 instead of the $2,000 claimed did not pretend to be.. The by the plaintiff. The court said: defendant is not aggrieved by the "Appellant cannot take advantage of fact that the jury cut down the claim the fact that the judgment rendered $24.31. It does not show such a against him is for an amount less compromise as to discredit the action than was established by the proof. of the jury. The rule, we believe, is Plaintiff below, who appeals because that the defendant cannot complain of inadequacy of the verdict, is en- because the plaintiff did not recover titled to relief in a proper case, but against him as large a verdict as he not so the defendant."

was entitled to, unless the amount of It was held in Seattle Brewing & the verdict shows that the jury, in Malting Co. v. Donofrio (1904) 34 determining the case, either wholly Wash. 18, 74 Pac. 823, that the de- disregarded the evidence, or misapfendant had no ground of complaint prehended its effect, or overlooked that the plaintiff's recovery for a some important fact, or must have breach of contract was for an amount necessarily found some fact in favor less than the evidence showed was of the defendant which is wholly indue, for the reason that error, to be consistent with a verdict for any available, must be prejudicial to the amount in favor of the plaintiff.” party complaining.

It was contended by the defendant Where it appeared that the jury, in Kawfield Oil Co. v. Braymer Drillfollowing the court's instructions rel- ing Co. (1923) 287 Fed. 713, an acative to the measure of damages, tion in assumpsit on a quantum rendered a verdict against the appel- meruit for services rendered in drilllant for an amount much less than the ing an oil well, that the inadequacy contract called for, the holding was of the plaintiff's verdict was error. to the effect that the error was not The evidence showed that the work one of which the appellant could of drilling was worth $7,155, that complain. Corbett v. Sayers (1902) the loss of the rent of tools while 29 Tex. Civ. App. 68, 69 S. W. 108, an the drilling operations were shut action to recover for breach of con- down by the defendant was $1,725, tract to purchase.

and that the work of fishing for the Quantum meruit.

casings put into the well was reasonIn an action on quantum meruit to

ably worth $1,600—making a total recover an unliquidated claim, the par

claim of $10,480. However, the jury ty against whom the verdict is found

rendered a verdict for only $8,158.75, cannot object that it is inadequate

to which the defendant objected. The in amount. Thus, action was brought

decision of the court was to the effect on a quantum meruit in Hogan v.

that, although the evidence would Rosenthal (1908) 127 App. Div. 312,

have sustained a larger verdict, the 111 N. Y. Supp. 676, to recover an

error was in no way prejudicial to unliquidated claim alleged to have the defendant, and therefore not a been $324.31. The jury rendered a matter of which that party could comverdict for $300 in favor of the plain- plain. tiff, and the defendant claimed that In Crigler v. Duncan (1906) 121 Mo. App. 381, 99 S. W. 61, the defend- stand.

The evidence is exant urged that the judgment should ceedingly conflicting.... The jury be reversed because the jury returned having found the issues for the plaina verdict for an amount less than that tiff, and made their award at a much to which the evidence showed the less amount than they otherwise plaintiff entitled. The action was might, the result did not prejudice brought to recover money had and the defendant. If the plaintiff is received. The evidence tended to willing to accept it, the defendant show that the amount due the plaintiff ought not to be heard to complain, was $733.33, but the jury fixed the because the advantage is pro tanto recovery at $500. In denying the de- his. It is not infrequently the case fendant's request for a new trial, the that juries return such verdicts as we court distinguished the present case have here. If the party who suffers from cases cited by the appellant, and is willing to abide their action withheld that, the action being for money out complaint, the complaint of the had and received, and not based other party that there has been a on an express contract, the general mistrial ought not to be heard with rule should be applied, to the effect indulgence." that the defendant could not be heard In Lee v. Merrick (1859) 8 Wis. to complain that the jury fixed the 229, the plaintiff sued to recover for amount of the plaintiff's recovery be- work, labor, and services rendered as low what it should have been.

foreman of the defendants' brickyard. In Alder v. Crosier (1917) 50 Utah, He set up an express contract pro437, 168 Pac. 83, wherein the jury re- viding for compensation at the rate turned a verdict for the value of

of $100 per month. The defendants services rendered in an amount much claimed that their agreement was to less than was due, according to the pay what the services were worth, and only testimony bearing on that issue, that the plaintiff left the employment it was held that the appellant could of his own free will. Evidence was not complain of the inadequacy of

also produced tending to show damthe verdict rendered against him, and ages suffered by the defendants, and thereby take advantage of a harmless

part payment of the wages due the error.

plaintiff. The court instructed the Counterclaim, set-offs, partial de- jury that “if they found the defendfenses.

ants agreed to give the plaintiff $100 The courts have held that, where per month for his services, they the verdict was manifestly lessened should find for that amount, less what by the allowance of a counterclaim, had been paid him, and if they found set-off, or partial defense, the ap- no special agreement as to the amount pellant cannot complain that the per month, then they should allow appellee should have received the plaintiff what his services were larger verdict.

worth, deducting the amount paid, In the case of McDonald v. Klenze

and if they found that the plaintiff (1916) 52 Mont. 142, 157 Pac. 175,

hired out to the defendants for the an action to recover the principal and

brick-making season, and left the eminterest on two promissory notes, the ploy of the defendants before the defendant introduced evidence which

expiration of the season, without their had the effect of a set-off. On com

consent, that then they should allow plaint of the defendant that the plain

him whatever


services were tiff's verdict should have been for the full amount demanded or noth- worth, after deducting the damages, ing, the court said: "Counsel insist

if any, sustained by the defendants that .. the plaintiff by reason of his leaving before the ought to have recovered the whole expiration of the season.” The jury amount demanded, or nothing, and

rendered a verdict in favor of the hence that the verdict must have been plaintiff for $280. The defendants the result of a compromise, and for

claimed that the verdict was wrongthis reason may not be allowed to fully rendered on a quantum meruit


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basis, whereas the action relied on son v. Patrick (1879) 126 Mass. 395; the express contract, and that the Alden v. Sacramento Suburban Fruit plaintiff's verdict was less than was Lands Co. (1917) 137 Minn. 161, 163 due him. The court held that the N. W. 133; H. B. Smith Co. v. Chapin error, if any existed, was injurious (1891) 38 N. Y. S. R. 463, 13 N. Y. to the plaintiff alone, and was not Supp. 799; Fuld v. Kahn (1893) 4 a ground of complaint on the part of Misc. 600, 24 N. Y. Supp. 558; Metz v. the defendants. The court also indi- Campbell Printing Press & Mfg. Co. cated that the nature of the evidence (1895) 11 Misc. 284, 32 N. Y. Supp. was such that the jury might have al- 155; Feldman v. Levy (1907) 56 Misc. lowed the set-off and defense offered 563, 106 N. Y. Supp. 1092. by the defendants, thereby accounting That view was adopted in the case for the alleged compromise verdict. of Stetson V. Stindt (Fed.) supra.

In Smith v. Railroad Employees' The action was brought to recover Development Co. (1917) – Tex. Civ. the unpaid balance of principal and App. 195 S. W. 220, an action to interest due on a promissory note. recover for the value of labor and Undisputed evidence showed the services rendered on a contract to amount to be $56,990.70. The court drill an oil well, the court held that instructed the jury to find for that the appellant had no right to com- amount if they found in favor of plain that the appellee received a the plaintiff, but the jury, in apparent verdict for only one half of the sum disregard of the instruction, rendered claimed and supported by undis- a verdict for $27,439.42. This is puted proof. The claim was for $1,178 urged as error in the present appeal. and the verdict was for $589. The The court said: “A verdict like the appellant argued that the size of the one under consideration, which is perverdict indicated that some of the verse and directly violative of the jurors did not believe a recovery charge of the court, and is wholly should be had, and that the verdict without evidence to support it, canfound was a compromise. The court not stand. It is not sufficient to say said that there was evidence which that the defendant cannot complain might justify a set-off, and that the because he was not injured. verdict was not necessarily a com- That liability might be for more promise. The general rule was there- than the jury found; yet it might upon applied, to the effect that “ap- be for nothing. What his liability pellant cannot take advantage of the is, the jury refused to say; but said fact that the verdict and judgment something else, which, under the law rendered against him is for an amount and on the facts, was simply untrue.” less than was established by the In H. B. Smith Co. v. Chapin (1891) proof."

38 N. Y. S. R. 463, 13 N. Y. Supp. 799,

the court took this view. Under the 0. Liquidated claim.

instructions the jury were limited to 1. Court instructions.

finding either $500 for the defendant, View that appellant may complain.

or the balance of $405.80 for the In actions on contract to recover a

plaintiff. The jury found for the deliquidated amount, the courts

fendant, but without awarding the

are divided in their view as to whether

$500. It was held that it was error

for the jury to disregard the court's the defeated party can complain that the jury rendered a verdict for a sum

instructions, and that either party less than that required by the instruc

had a right to a new trial. tions of the court, but the weight of

It was held in Jensen v. Duvall authority favors the view that the (1921) 192 Iowa, 960, 185 N. W. 584, party against whom the inadequate that either the plaintiff or the deverdict is rendered may object. Stet

fendant could raise the objection son v. Stindt (1922) 23 A.L.R. 302, that the jury rendered an inadequate 279 Fed. 209; Jensen v. Duvall (1921) verdict, contrary to the evidence and 192 Iowa, 960, 185 N. W. 584; Peter- the instructions of the court.

It apa


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