Walker v. Rogers

Bartol, J., delivered the opinion of the Court. Two exceptions were taken to the ruling of the Superior Court in this case ; the first involving a question of evidence, the second arising upon the action of the Court on the prayers. As to the first exception the opinion of this Court is, that there was no error in sustaining the objection to the question propounded to the witness Harvey. Upon this point we all agree with the views expressed by our brother Wekel, and without adding anything further in support of a proposition that seems to us to be free from difficulty, we rest the decision of this part of the case upon the authorities cited by him in his opinion. The second exception was taken by the plaintiff below to the rejection of his prayer, and to the instruction given by the Court to the jury. It has been repeatedly decided by this Court that a judgment will not he reversed on appeal if it appears that the law of the case has been correctly laid down for the direction of the jury, or the appellant has not been prejudiced by the instruction actually given, notwithstanding the prayers rejected may have been correct in themselves. Here two objections are made by the appellant to the instruction given by the Court below: The first referring to the grounds of the plaintiff’s action or right to recover— the second to the measure of damages or rule by which the jury was to he governed in estimating the.rate or standard of compensation. The objections will be considered in the order stated. Eirst, as to the ground of the action. In comparing the plaintiff’s prayer with the instruction of the Court, it is not easy to discover any substantial difference between the propositions of law they respectively contain, at least .so far as they affected the grounds of the action. The [248] theory of the plaintiff’s prayer was, that in order to entitle him to recover, the jury must find. 1st. “That he was-employed hy Rogers to aid and assist him in effecting the sale of the property.” 2nd. “That he did diligently and. faithfully occupy his time and render services in so aiding him (Rogers) to effect said sale; ” and 3d. “That the sale was effected.” In the Court’s instruction the same propositions are stated in the identical words of the prayer, with the additional words, that “such services were of advantage and value to Rogers in effecting the said sale.” To this part of the instruction the appellant objects on the ground that the services of the plaintiff being rendered under his employment, he is entitled to compensation whether Rogers derived any benefit .from them or not. We agree that where a party is employed to do a specified work, and there is no price agreed on, if he does the work he is employed to do, he may recover upon a quantum valébat or quantum meruit the value of his time and labor without reference to the benefit or advantage actually derived therefrom by the defendant. In such case the whole risk of the work’s answering the purpose designed is taken hy the defendant. But this case is one of a different sort, growing out of the very nature of the contract sued on. No express contract is proved, but the nature of the employment is to be inferred from the acts of the parties. The plaintiff was not employed as a broker to find a purchaser or to sell the property; according to the theory of the plaintiff’s prayer, as well as of the Court’s instruction, he undertook to aid and assist Rogers in effecting the sale. The plaintiff, by his prayer, conceded that he could not recover unless the jury found that he did “diligently and faithfully occupy his time and render services in aiding Rogers to effect the sale,”- that is, not merely that he should have had the intention and purpose of aiding and assisting to effect the sale, but that what he [249] did should be so done as to have that effect. Now, the Court’s instruction, as we construe it, means substantially the same thing. It is impossible that the plaintiff could have rendered aid and assistance, and yet Rogers not have been aided and assisted by what he did. These are correlative propositions, and when the Court told the jury they must find that Rogers received benefit and advantage from the acts of the plaintiff, it stated substantially the same proposition as that contained in the plaintiff’s prayer. The result of the argument of the appellant would be, that although his undertaking was to aid and assist Rogers in effecting the sale, he is entitled to recover, notwithstanding the jury may find that he did not, in fact, aid or assist in effecting the sale. There was evidence in the cause that the plaintiff represented other property which was offered for sale as a public park, and which entered into competition with the property of Rogers. It waS also proper for the jury to consider upon all the evidence whether what was done by the plaintiff in behalf of Rogers was done in such discreet and skillful manner as to promote the object designed. It would not have been proper for the Court to withdraw from the consideration of the jury the question whether the services of the plaintiff’ were rendered in a negligent or unskillful manner ; and no better test of that could be given than whether Rogers derived any benefit or advantage from them. In Chitty on Contracts, 481, the author says, in speaking of the question of skill and diligence of an agent: “ But if the principal derive any benefit from the act of his agent, the latter is entitled to a proportionate compensation,” and cites the decision of Best, C. J.., in Hammond vs. Holliday, 1 Carr. & P., 384. It would follow, of course, in such a case, if no benefit is derived by the principal the [250] agent would be entitled to no compensation. The same test was applied -by Ld. Ellerborough in Farnsworth vs. Garrard, 1 Camp., 38, where the Court said: “The plaintiff is to recover what he deserves; it is, therefore, to be considered how much he deserves, or if he deserves anything. If the defendant has derived no benefit from his services, he deserves nothing, and there must be a verdict against him. (Decided March 14th, 1866.) We are of opinion that the first objection to the instruction given by the Superior Court in this case is not well founded. As to the second objection we are all of opinion that the instruction was correct, and on this point we refer to what has been said by our brother Weisel in his opinion— merely adding that the evidence of usage was so vague and indefinite as to make it questionable whether the defendant might not have justly complained of the action of the Court in submitting it tg the jury at all. Waiving this point, however, we are clearly of opinion that the plaintiff was not entitled to ask for an instruction to the jury in the peremptory form of the prayer. But inasmuch as the jury have found that the plaintiff was not entitled to recover anything, the appellant would not be entitled to a reversal, even though there was error in that part of the instruction touching only the measure of damages. Finding no error in the Court’s instruction to the jury, the judgment will be affirmed. Judgment affirmed.