Lambard-Hart Loan Co. v. Smiley

Opinion by RAY, C. This judgment must be reversed upon the ground that the issues were not fairly submitted to the jury. The pleadings were submitted to the jury for their determination of what the issues were. Plaintiff’s petition contains three causes of action, all based upon an oral contract. In the first cause of action it was alleged that plaintiff and defendant had entered into an oral contract, by the terms of which plaintiff was to remain in the employ of the defendant at a salary of $100 per month, and, in addition thereto', that if plaintiff should increase the insurance business of the defendant 10 per cent, above the previous year, as additional compensation, he should receive 50 per cent, of the increase in the insurance business after deduction therefrom of his salary; that at the end of the year, plaintiff had increased the insurance business as agreed, and the increase over and above the salary amounted to $500. and that he was entitled to receive the sum. óf $250. In the second cause of action, it was alleged that in the same oral contract, it was agreed that plaintiff should receive one-half of the commission derived from the sale of real estate that might be negotiated by the plaintiff during the life of his contract ; that while working under the contract he made a sale of real property for defendant, from which sale the defendant earned and received a commission of $750, of which sum the plaintiff was entitled to receive one-half, but that the defendant had failed and refused to pay plaintiff his part' of his commission, except the sum of $125; and that there was due him as commission from the sale the sum of $250. In the third cause of action it was alleged that by the terms of the same oral contract it was agreed that plaintiff should have one-half of the commission earned on all loans made through his efforts, and that when the property referred to in the sec *203 ond cause of action was sold, a loan was negotiated through the plaintiff, from which the defendant received a commission of $105, and that the plaintiff was entitled to receive one-half of the commission of $105, to wit, $52.50, which defendant refused to pay. The defendant entered general denial to each of the separate causes of action, and filed its cross-petition against the plaintiff, containing three separate causes of action. In the first cause of action it was alleged that about the 1st day of September, 1919, plaintiff and defendant entered into an oral contract by the terms of which plaintiff agreed to work in the insurance department carried on by the defendant and in the agency for the sale of real estate, and agreed to receive in full payment for his services 50 per cent, of the commission which defendant would become entitled to receive on all policies secured and written as a result of the solicitation of the plaintiff, and 50 per cent, of the commission to which defendant would be entitled as a result of the sales of real estate made by defendant; that the agreement continued until the 1st day of December, 1919, at which time the contract was modified by the defendant agreeing to pay plaintiff $25 per month in addition to the commissions for securing insurance business, and for the sale of real property; that from the 1st day of December, 1919, until the first of March, 1920, in addition to the $25 per month, the defendant paid the plaintiff $961.50; that during that period defendant’ earned in commission, outside of his $75 as salary, the sum of $722,97; that during said period defendant paid to plaintiff, and plaintiff received, prior to March, 1920, the sum of $258.53 more than plaintiff had earned, and that he was indebted to the defendant in the sum of $258.53. For its second cause of action, the defendant alleged that about the 1st day- of March, 1920, the original contract was modified by the defendant agreeing to pay the plaintiff the sum of $100 per month, in consideration of which plaintiff agreed to devote all his time, energy, and attention to to the insurance business being operated by the defendant, and agreed to use his best efforts and labor to increase the earnings and profits of the insurance business, and it was agreed that in the event the insurance business was increased more than 10 per cent, above the average earnings and profits made during the three preceding years', defendant would pay plaintiff 50 per cent, of the excess of profits from the business remaining after paying all expenses, including the salary of $100 a month to the plaintiff in excess of 10 per cent, above the average profits for the last preceding years; that the contract as modified continued in force until the 1st of January, 1921, when it was terminated by mutual consent; thiat between the 1st day of-March, 1920, and the 1st day of January, 1921, the defendant paid plaintiff all of his salary, and in addition to the salary, at the plaintiff’s special instance and request, paid plaintiff the full sum of $1,346.13; that during the period from March 1, 1920, to the 31st day of December, 1920, the insurance business of defendant showed a net - profit of $1,317.49 more than 10 per cent, of the average profits during the three years last preceding, and that the plaintiff was entitled under his contract to a credit of $658.75, being one-half of $1,317.49; that the plaintiff was entitled to receive during that period from March 1st to December 31st, the sum of $1,158.75 and no more; that during said period plaintiff received from defendant $687.40 more than he .was entitled to receive, and that he was, therefore, indebted to defendant in the sum of $687.40. For its third cause of action against plaintiff, defendant alleged that during the period beginning September, 1919, and ending the first day of March, 1920, the plaintiff caused to be issued certain fire insurance policies, particularly set out, to persons who did not desire or request such insurance and for which no payment was made, to the loss of defendant in the sum of $62.25. On its three causes of action, defendant prayed judgment against plaintiff for $1,008.18. To this cross-p.etition plaintiff answered by general denial. The general rule is as stated by Blashfield, in his work on Instructions to Juries, as follows: “In submitting the question of fact, it is necessary that the issues involved in the case should be stated to the jury, and what issues are raised by the pleading is a question of law which it is the exclusive province of the court to determine.” Where the pleadings are voluminous, as in this case, and so involved as to render it doubtful whether the jury could clearly determine the issues, they should be stated to the jury in the instructions. The issues were not defined in the instructions, and the pleadings were given to the jury for thein detemination as to what the issues were over the objections of the defendant. The judgment is reversed, with directions to grant the defendant a new trial.