Gaume v. Horgan , 122 Mo. App. 700 ( 1907 )

ELLISON, J.

This action was instituted to recover of defendant a commission of five hundred dollars for the sale of his hotel property. The plaintiffs recovered judgment in the trial court. The claim of the plaintiffs is that they found a purchaser in one, D. P. Ritchie. The claim of the defendant is that he sold his property to Twig and that the latter sold it to Ritchie.

While there is some objection made in the brief and argument that the verdict is against the evidence, or rather the weight of the evidence, yet it is conceded in the brief that if the petition had been amended to accord with the facts disclosed in evidence and the instructions had been drawn to conform to the petition as amended, the jury would have had ground upon which to base the verdict. We agree that the verdict had evidence tending to support it, and it therefore only remains to inquire into the question of variance.

The petition alleges that the. defendant placed the property with the plaintiffs for sale at the price of $17,000 and that if they would procure a purchaser at that price defendant would pay them a commission of $500. It is then alleged that plaintiffs procured Ritchie as such purchaser who bought the property for that sum. The instructions for plaintiffs submit the case as alleged in the petition. . If there was a variance between the case alleged in the petition and that made by the evidence, it was necessary for defendant to have taken advantage of it by an affidavit showing in what respect he was misled, and that was not done.

We regard what we have stated as disposing of the •points made by defendant, though it may be that he means to include in his complaint that the evidence not only did not support the petition, but that it did not justify the instruction for plaintiff submitting the case as it is stated in the petition. The instruction submits the hypothesis whether defendant sold the property for $17,000, while the evidence discloses that the real price was something above that sum, being between $17,000 and $18,000. But, as plaintiff only claimed the commission agreed upon for a sale at $17,000, we cannot see where defendant could possibly be harmed. No objection was made that the evidence was not responsive to the petition, and as already stated there being no affidavit of surprise there was a waiver of the matter of variance. [Chouquette v. Railway, 152 Mo. 257; Fisher v. Realty Co., 159 Mo. 562.]

The record does not show anything which would justify us in disturbing the judgment and it is accordingly affirmed.

All concur.