Johns v. League, Duvall & Powell Inc.

While it is the duty of this court to construe pleadings and evidence in the most favorable light and most strongly to sustain a verdict, yet the fundamental rules of pleading and evidence must be followed.

Construing the petition in the instant case, the pertinent portions being set forth in the above statement of facts, it seems clear that the petition sought a recovery only upon an express contract; and I do not think that, by any reasonable construction, it attempts to set forth an implied contract upon which a recovery on a quantum meruit would be authorized.

Neither is there any evidence in the record that even tends to prove any implied contractual relationship. All of the evidence of the plaintiff in the court below relates to the establishment of an express contract, in that the plaintiff corporation procured a purchaser ready, willing, and able to pay $35,000 for the property; and that it was to receive 5 percent thereof as commissions.

The suit being predicated upon an alleged express contract, and there being no allegation or evidence tending to establish an implied contract, or any charge of the court upon which a verdict based on a quantum meruit would be authorized — the only legal verdict that could be returned was one for the plaintiff for the amount sued for, or else a verdict for the defendant. Baldwin v. Lessner, 8 Ga. 71; Frierson v. Fincher, 134 Ga. 113 (67 S.E. 541); Haygood v. Perkins, 142 Ga. 168 (82 S.E. 544); Sylvania Girard R. Co. v. Sylvania Lumber Co.,8 Ga. App. 656 (70 S.E. 51); Walker v. O'Neal, 21 Ga. App. 563 (94 S.E. 835); Alford v. Davis, 21 Ga. App. 820 (4 c) (95 S.E. 313); Shropshire v. Heard, 27 Ga. App. 256 (107 S.E. 892); Seaboard Air-Line Ry. Co. v. Henderson Lumber Co.,28 Ga. App. 391 (111 S.E. 220); Graham v. Jones, 39 Ga. App. 610 (147 S.E. 902); Blackston v. Durant, 65 Ga. App. 86 (15 S.E.2d 261); Stetson v. Stindt, 279 Fed. 209 (23 A.L.R. 302).

The rules of pleadings may, at times, seem technical, but such technicalities are to the law what nails are to a building — they both hold the structure together.

The verdict is not made valid by a portion of the judge's charge, even though no exceptions were filed thereto. In the latter part of the charge it is said: "If you find that the plaintiff has made out his case, . . then your verdict would be for the plaintiff in such an amount as you believe he is entitled to from the evidence." The court had previously charged that the plaintiff was suing for commissions on $35,000, and that "it will be five percent commissions if he is entitled to recover." This specific instruction as to the amount, if any, to be recovered, was not modified by the general statement, first above quoted, so as to authorize the jury to find a verdict other than five percent of $35,000.

Attention has been called to certain cases which have stated that the fact that a verdict for the plaintiff is not as large as the testimony warranted is no ground for a new trial at the instance of the defendant. See Ellis v. United StatesFertilizing c. Co., 64 Ga. 571 (1); Mullins, Head Co. v.Murphy, 69 Ga. 754; Schaefer v. Knott, 69 Ga. 772;Roberts v. Rigden, 81 Ga. 440 (2); Smith v. Lee Co.,82 Ga. 674; Pullman Co. v. Schaffner, 126 Ga. 609 (4);Dolvin v. American Harrow Co., 131 Ga. 300 (11); McKenzie v. Patterson, 27 Ga. App. 465 (4) (109 S.E. 174).

While such statement is applicable to many cases and is either made or applied in each of those listed above, yet it is not a rule of such general application as to cover every instance. None of these cases contains the identical question here presented, or holds that a verdict for a less amount would be valid, and a new trial not be granted, where there was no pleading or evidence to authorize it, and the verdict was contrary to the charge of the court. To give unlimited application to such statement, would present grave consequences. To illustrate: Suppose a suit upon a promissory note for a stated amount, or a suit in ejectment for a described tract of land, was filed, and the sole defense as to the note was non est factum, and as to the ejectment suit that the deed relied upon by the plaintiff was a forgery; I do not think that the defendant would be precluded from complaining if the verdict of the jury was one-half of the amount sued for on the note, or the verdict in the ejectment case should be for a one-half interest in the land.

The verdict in the present case is unsupported by pleading or evidence and is contrary to the charge of the court. It is not correct to say that the defendant cannot complain, or that he was not injured. He was deprived of his right as a litigant to have the question of liability, or no liability, determined by the jury under the petition, evidence, and charge of the court. He was either liable for the entire amount, or for nothing; but the jury declined to determine that question, and rendered a verdict which was untrue and unauthorized.