Harrell v. Bishop , 160 Fla. 3 ( 1948 )

In a suit for commission earned as a real estate broker the declaration was in four common counts and one count on contract claiming 6 1/2 per cent commission on a sale in which the purchase price was $25,750.00 or $1,609.37.

Defendants filed pleas of never was indebted as alleged to the common counts and plead as to fifth count,

"1. That they did not promise as alleged and

"2. That the plaintiff did not procure a purchaser ready, able and willing to purchase defendants' property upon terms and conditions agreeable to the defendants," — and then plead,

"And for further plea to the first, fourth and fifth counts of plaintiff's declaration and each of them severally, defendants say:

"1. That plaintiff did not furnish the services as alleged."

On the declaration and such pleas, trial was had.

There was evidence to show the purchase price, for which plaintiff found and procured to defendant, was $25,750.00; there was evidence tending to prove that plaintiff was entitled to recover 5% of the purchase price under the common counts, and evidence tending to prove that plaintiff was entitled to recover 6 1/2% of the purchase price under the fifth count.

There was no evidence tending to prove that plaintiff (if entitled to recover at all) was entitled to recover less than 5% of the purchase price agreed upon.

The jury returned a verdict and judgment was entered thereon for $250.00.

Plaintiff appealed.

There is found no basis in the record for the amount of the verdict returned by the jury. If the plaintiff was entitled to recover at all he was entitled to recover either 5% or 6 1/2% of the agreed purchase price.

There must be some rational predicate for a jury's verdict. Allen v. Powell, 152 Fla. 443, 12 So.2d 378; Miller v. Mariner's Church, 7 Mo. 51; 20 Am. Dec. 341; Hackett v. Pratt,52 Ill. App. 346.

For the reason stated, the judgment is reversed and the cause remanded for new trial.

So ordered.

THOMAS, C. J., TERRELL, CHAPMAN and ADAMS, JJ., concur.

SEBRING and BARNS, JJ., dissent.