Opinion
No. 35934.
November 12, 1945.
1. BROKERS.
In action to recover broker's commission on sale of kitchen and cafeteria equipment and fixtures, evidence sustained verdict for broker.
2. APPEAL AND ERROR.
Where there is ample evidence to support jury finding, Supreme Court is not at liberty to set aside finding.
3. BROKERS.
Where declaration recited that plaintiff was a commission broker or manufacturer's agent engaged in business of bringing together persons who wanted to sell and who wanted to buy, and that plaintiff undertook to sell certain merchandise for defendant, there was no material variance with proof disclosing that plaintiff brought defendant into contact with a buyer, and that as a result of direct negotiations between defendant and buyer, a sale was made (Code 1942, sec. 1512).
4. APPEAL AND ERROR.
Where defendant made no objection to evidence when offered on ground of material variance or departure from declaration and case was tried and completed without such objection, defendant, on appeal, could not take advantage of alleged variance (Code 1942, sec. 1512).
5. APPEAL AND ERROR.
Where record disclosed that alleged variance between pleading and proof did not mislead defendants to their prejudice, variance was not material (Code 1942, sec. 1512).
6. APPEAL AND ERROR.
For a defendant to secure relief because of a variance between pleading and proof, variance must be material, and it is not "material" unless it has actually misled defendant to his prejudice, and, if it is material, objection must be made so that the situation may then be dealt with by trial court (Code 1942, sec. 1512).
APPEAL from Circuit Court of Hinds County, HON. H.B. GILLASPIE, Judge.
W. Harold Cox and B.B. McClendon, both of Jackson, for appellants.
It is familiar law that a plaintiff must recover, if at all on the case made by his declaration or complaint; and, therefore, if he fails to prove his cause of action as laid, but proves a different one, he cannot recover on either.
21 R.C.L. 608, Sec. 152; 41 Am. Jur. 557, Sec. 383.
We are not confronted here with a mere defective statment of a formal part of the declaration, such as might be held to be cured by the statute of jeofails, Sec. 1544, Code of 1942, or of an insufficient statement of a cause of action or an immaterial variance under Section 1512, Code of 1942, such as might have been cured by amendment, but with a total departure in the proof from the alleged contract on which the cause of action is based — an attack from a wholly different quarter, coupled with an abandonment and disavowal of the facts and even the theory of liability on which appellee had proceeded up to that time, both in negotiations for settlement, and in the declaration filed.
While recovery may be had on a defectively stated cause of action if no objection is made thereto, still such defective allegation can rise no higher than could a correctly averred cause of action, and either must find support in the evidence.
Reaves v. Dennis, 6 Smedes M. (14 Miss.) 89; Holmes v. Preston, 70 Miss. 152, 12 So. 202; Drake v. Surget, 36 Miss. 458; Carter v. Collins, 151 Miss. 1, 117 So. 336; True-Hixon Lumber Co. v. McDonough, 154 Miss. 720, 123 So. 855; Upton v. Adcock, 145 Miss. 372, 110 So. 774; Wells v. Alabama G.S.R. Co., 67 Miss. 24, 6 So. 737; Phipps v. Ingraham, 41 Miss. 256; Fowler v. Austin, 1 How. (2 Miss.), 156; Code of 1942, Sec. 1480.
The scintilla of evidence rule has been discarded in nearly all jurisdictions, and is not recognized in this state; but verdicts must be based upon substantial evidence, and that evidence must be reasonably believable. Whatever a jury here or there might chance to believe, we must require that the evidence upon which they act must be within state-wide legal standards, and one of these, as said, is that the evidence must be substantial and must be reasonably believable.
Teche Lines, Inc., v. Bounds, 182 Miss. 638, 179 So. 747; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Yazoo M.V.R. Co. v. Lamensdorf et al., 180 Miss. 426, 177 So. 50; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Kramer Service, Inc., v. Wilkins, 184 Miss. 483; 186 So. 625.
Complainant must prove his case by a preponderance of the evidence and establish facts forming basis of recovery with reasonable certainty.
D.L. Fair Lumber Co. v. Federal Land Bank of New Orleans, 158 Miss. 87, 128 So. 733.
Conjecture as to facts necessary to recovery will not support any verdict in any case.
Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Yazoo M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Masonite Corporation v. Dennis, 175 Miss. Miss. 855, 168 So. 613.
Verdicts must be based on evidence, and not on speculation.
Shell Petroleum Corporation v. Eagle Lumber Supply Co., 171 Miss. 539, 158 So. 331.
Where two witnesses are in direct conflict on the main issue, and one is fully sustained by other witnesses in every instance where he testified to material, if incidental, facts known to them, while the other is contradicted by the other evidence in the case, the testimony of the latter should be discredited, and that of the former accepted.
Fox v. Matthews, 33 Miss. 433.
There was no meeting of the minds in this case in any common purpose for service on the one hand and compensation on the other.
Edwards Hotel Co. v. Chambers, 141 Miss. 487, 106 So. 763.
The verdict is clearly against the overwhelming weight of the evidence. The jury by its verdict has found that appellee had a contract with the appellants for the sale of their merchandise and that appellee sold such merchandise for the appellants and became entitled to an agreed five percent commission therefor. The testimony of the appellee himself completely refutes that finding. The testimony of all of the parties completely dispells the existence of such contract, and we earnestly submit that the court cannot say with assurance from this record that justice has been done or the right result reached herein. The authorities are legion to the effect that it is the constitutional duty of the trial court to award a new trial in just such a case.
Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581.
This Court upon review must apply to all of the evidence a calm, deliberate and impersonal judgment founded in the lessons of long experience and observation in the lives of men in all their various ranks, and measure thence according to sound human standards of reasonable probabilities. Unless the Court can say with confidence that the verdict is not manifestly against all reasonable probabilities, it should be reversed.
Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Jakup v. Lewis Grocer Co. et al., 190 Miss. 444, 200 So. 597; Truckers Exchange Bank et al. v. Conroy, 190 Miss. 242, 199 So. 301; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Mobile, J. K.C.R. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Beard et al. v. Williams, 172 Miss. 880, 161 So. 750; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910.
Butler Snow, of Jackson, for appellee.
There was no variance in the allegations of the declaration and the proof. If there was a variance, it was at most an immaterial variance. Certainly there was no variance which did or could have misled the defendants to their prejudice, and, lastly, there was no objection to plaintiff's testimony when the same was offered on the ground that the same constituted a material variance from the allegations of the declaration.
Code of 1942, Sec. 1512.
Even a material variance between the cause of action stated in the declaration and that sought to be proved can only be availed of by objection to the testimony; otherwise, it will not be considered.
Greer v. Bush, 57 Miss. 575; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Illnois Cent. R. Co. v. Cathy, 70 Miss. 332, 12 So. 253; Illinois Cent. R. Co. v. Price, 72 Miss. 862, 18 So. 415; Alabama V.R. Co. v. Pounder, 82 Miss. 568, 35 So. 155; Jones v. Bunch (Miss.), 125 So. 551; True-Hixon Lumber Co. v. McDonough, 154 Miss. 720, 123 So. 855; Gower v. Strain, 169 Miss. 344, 145 So. 244; Louisiana Oil Corporation v. Davis, 172 Miss. 126, 158 So. 792; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 743.
There is no merit in the contention that the verdict of the jury and the judgment of the court was contrary to the overwhelming weight of the evidence, and that the agreement to pay the five percent commission was not supported by a valuable consideration.
An agreement for personal services and benefit to the promisor is ample consideration for any contract.
12 Am. Jur. 570.
Corneil sued appellants and recovered a judgment for a broker's commission of five percent of the purchase price of certain kitchen and cafeteria equipment and fixtures sold by appellants to the Jones Construction Company, which concern was constructing a military camp at Camp Shelby, near Hattiesburg, Mississippi. Appellants contend on this appeal they are not liable, first, because the proof does not support the verdict of the jury adjudging liability, and, second, because the declaration is grounded on one cause of action and the proof shows an entirely different cause of action, if it shows any liability whatsoever.
On the first question, Corneil claims appellants expressly agreed to pay him five per cent of the purchase price of such equipment and fixtures as appellants might sell Jones Construction Company for kitchen and cafeteria purposes. Appellants say they did not agree to pay Corneil anything. There was a direct conflict in the evidence upon that. The jury found that appellants did so agree and there is ample evidence to support that finding. Therefore, we are not at liberty to set aside the finding of the jury.
On the second question, the declaration sets out that Corneil, plaintiff below, was engaged in the business of a manufacturer's agent — that is, he would ascertain who desired to purchase goods and merchandise and would then contact the sellers thereof, and assist in arranging a purchase and sale for an agreed commission to him for his services, and that appellants knew him and the nature of his business; that on or about October 20, 1940, he learned that the Jones Construction Company desired to purchase equipment and fixtures for a kitchen and cafeteria at Camp Shelby, and that he knew that such equipment and fixtures were of the nature and kind manufactured and sold by appellants. The declaration then continues:
"2-a. That pursuant to the business of the plaintiff, he approached the defendants, and then and there made arrangements with the defendants that he would undertake to sell to the said J.A. Jones Construction Company said fixtures and equipment, and that in the event he was successful in so selling said equipment, the same would be furnished by the defendants, and it was then and there agreed by and between the plaintiff and the defendants, for his effort therein, in the event the equipment manufactured by the defendants was so sold, that the plaintiff should receive as his commission thereon and as his compensation therefor a sum equal to 5% of the selling price of said equipment, the same to be paid by the defendants to the plaintiff.
"3-a. That the plaintiff was successful in procuring said order for the defendants, and said equipment was sold by the defendants to the said J.A. Jones Construction Company, and said defendants received therefor as the purchase price the sum of $30, 581.00, the final payment thereon having been made by the said J.A. Jones Construction Company to the defendants on or about February 1, 1941.
"4-a. That as a result of the contract between the defendants and the plaintiff, the plaintiff was entitled to receive as his commission on said sale the sum of $1,529.05. On January 20, 1941, the defendants paid to the plaintiff on said commission the sum of $100.00, leaving a balance due thereon of $1,429.05."
As to the proof, relating to the foregoing ground for recovery, Corneil testified that he had spent much time in and around Camp Shelby and knew the purchasing agent of Jones Construction Company, and that this agent inquired of him where he might purchase fixtures and equipment for a kitchen and cafeteria; that he, Corneil, replied he did not then have such equipment but thought he could make connection that night with some one who did have it for sale and who could furnish it; and would endeavor to do so and would notify Overcash, the purchasing agent; that from his room in a hotel at Hattiesburg he called Mr. Rondo Westbrook, one of the partners, at Jackson over the telephone; that Mr. Westbrook was ill and his wife answered the telephone and that Corneil told her to have Mr. Westbrook call him before 9 o'clock the next morning, at which time he was going back to the camp; that shortly thereafter that night Mr. Westbrook called him back over the telephone; that he told Westbrook of this prospect of sale to Jones Construction Company and "that I can swing the (deal) your way"; that he, Corneil, knew nothing of the prices and set-up of the articles to be sold and it would be necessary for appellants to have a man at Hattiesburg the next day; that "I will handle this deal for five percent," and that Westbrook said "All right"; that he would have a man there the next day familiar with the price and manner of installing such equipment, and it was agreed this other man would meet Corneil the next day at the hotel desk in Hattiesburg at 12 o'clock; that he, Corneil, went back to the camp the next morning and informed the purchasing agent for Jones that he had made the contact and a man would be there that day to figure on it; that, as had been agreed over the telephone, a Mr. Dulaney, representative of appellants, came into the hotel promptly at noon that day; that he fully informed Mr. Dulaney of the situation and that afternoon carried Mr. Dulaney to the purchasing agent in his automobile and introduced him to such agent, who, after discussing the situation, informed them he then had only one set of specifications and would have to get up another. Mr. Dulaney returned to Jackson that night but came back the next day with Mr. Jack Westbrook, another partner in Westbrook Manufacturing Company; that he Corneil, met them at the hotel and went with them to Mr. Overcash and introduced Mr. Westbrook to Mr. Overcash. There then took place a general discussion of the sale and purchase of the equipment in his presence; that Overcash informed them he had another set of the plans and specifications which might be used by Mr. Dulaney and Mr. Westbrook in figuring their prices and that these gentlemen returned to the factory at Jackson with the plans and specifications; that within a few days Mr. Jack Westbrook and the superintendent of appellant's plant returned to Camp Shelby, went to the hospital in connection with which the cafeteria was to be used, inspected the building in which the equipment was to be installed and checked the plans with the proposed manner and location of installation of the fixtures and equipment; that after appellee went back to the purchasing agent with Mr. Dulaney and Mr. Westbrook he stepped out of the picture and had nothing else to do with it, and when asked "That was the end of your activities," he replied "Yes, sir, that was our agreement." He was further asked "State whether or not you did everything that you agreed with Mr. Rondon Westbrook that you would do in connection with the order." "A. I did." On cross-examination he was asked ". . . so you didn't do anything actually except tell them about the job and introduce them to Mr. Overcash." "A. That was our agreement." He further said that if appellants had not agreed to pay him as he testified they did agree to do, he would have contacted other sellers and tried to make a similar arrangement with them.
Appellee obtained an instruction which grounded liability on his services as shown by his evidence, provided the jury found these to be the facts.
It should be added that shortly after the foregoing negotiations appellants, at different times, did sell and deliver to Jones Construction Company cafeteria equipment and fixtures of a total sale price of approximately $30,000, and on January 20, 1941, delivered to Corneil a check for $100, which appellants say was a gratuity, or expression of appreciation, and Corneil says was payment on account.
Appellants say the evidence failed entirely to establish liability as alleged in the declaration; that the acts performed, as shown by the evidence, in no respect come within the duties imposed upon appellee by the averments of the declaration; that the proof was an entire departure from the stated cause of action, and appellants cite a number of cases announcing, or supporting, the rule that in such case no recovery can be had. However, we do not think the rule is applicable to the circumstances of this case.
It will be noted that the declaration states, among other things, that appellee "would undertake to sell . . ." the property to Jones Construction Company. He did not actually make the sale but each effort and act of his, as shown in the proof, was a step to that end. His services as proven were not a departure from those contracted to be performed. The contract included them. Perhaps the most that can be said in that regard is that his efforts fell short of the undertaking measured by the literal and strict wording of the declaration. But the sale did take place. The parties themselves consummated it. It will be noted, too, the declaration states that the business of Corneil was to find out who wanted to buy and who wanted to sell and bring them together — that he was a commission broker, or a manufacturer's agent — and that appellants knew that, and, consequently, the arrangement was made in the light of that knowledge. Too, it is shown that, in the nature of the transaction here, Corneil had done about all he could do; that the matter thereafter had to be carried forward and completed between the parties themselves.
But if there be a material variance between the declaration and the proof we do not think appellants are in position to now take advantage of it. No objection was made to the evidence when offered because of a material variance or departure from the declaration. The case was tried and completed without such objection. Section 1512, Code of 1942, reads: "A variance between the allegation in a pleading and the proof shall not be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits; and where it shall not be shown to the satisfaction of the court that the party has been so misled, and immediate amendment of the pleading may be made without costs, and without delaying the cause. If the party has been so actually misled, an amendment may be allowed on such terms as shall be just."
We do not think appellants were misled to their prejudice in the trial of the case here, first, because, as stated, the proven acts of Corneil, by a reasonable construction of all the allegations of the declaration and the circumstances surrounding the parties, come within such allegations, in our opinion, and, second, because Mr. Rondo Westbrook admitted having a conversation with Mr. Corneil, but said it was with reference to the sale of stoves and ranges and not cafeteria equipment, and denied he agreed to pay Corneil anything; so that the main issues in the case were whether the conversation which admittedly took place was with regard to the sale of stoves and ranges or cafeteria equipment and whether appellant agreed to pay appellee anything for his services. The declaration specified the nature of the articles and the agreement to pay. It will be noted, too, appellants never objected to the evidence on the ground of surprise or prejudice during the trial. Had that been done, the trial court could have then ruled and dealt with the situation as fairness and justice might have required. Plaintiff then might properly have been permitted to amend his declaration, if needed, to conform to the proof. This Court has repeatedly held under Section 1512 that a variance between the cause of action stated and that shown by the proof can only be availed of by objection to the testimony, otherwise the contention will not be considered on appeal. Greer v. Bush, 57 Miss. 575; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Illinois Central Ry. Co. v. Cathey, 70 Miss. 332, 12 So. 253; Illinois Cent. Ry. Co. v. Price, 72 Miss. 862, 18 So. 415; Alabama V. Ry. Co. v. Pounder, 82 Miss. 568, 35 So. 155; Jones v. Bunch (Miss.), 125 So. 551; Gower v. Strain, 169 Miss. 344, 145 So. 244. The variance must be material and it is not material unless it has actually misled the other party to his prejudice, and, if it is material, objection must be made so that the situation may then be dealt with by the court. It is not necessary for us to, and we do not, discuss and try to deduce the rules applicable to a situation where there is an entire departure in the proof from the grounds of liability set out in the declaration. We have said we do not think that is the case here.
We have examined the other errors assigned but do not think any of them require a reversal of this case.
Affirmed.