
    [No. 5558.]
    Lenander v. Graves et al.
    Pleadings and Evidence—Variance—There can he no finding upon a quantum valebat, where the evidence tends to show no more than a special contract ol employment at a specified commission.—(248)
    
      
      Appeal fr.om Conejos District Court—Hon. Charles C. Holbrook, Judge.
    Mr. N. Q. Tanquary, Mr. Jas. D. Pilcher, for appellant.
    Mr. Jesse Stephenson, for appellee.
   Mr. Justice Campbell

delivered the opinion of the court:

Plaintiffs, as co-partners, sued for a broker’s commission which they claim to have earned in selling defendant’s real estate. The complaint, in a single count, or statement, alleges an express contract whereby defendant agreed to pay plaintiffs a commission of $920, and that their services were reasonably worth that sum. The jury returned a verdict for $240, and from the judgment entered thereon defendant appeals. .

The judgment is wrong. If plaintiffs’ testimony is right, the verdict should have been for $920. If defendant is to be believed, the finding should have been for him. There is no basis in the evidence for the amount of the verdict as returned. Possibly the jury tried to apply an improper instruction to the effect that, if plaintiffs performed services for defendant in the sale of lands, they might find for plaintiffs for the value thereof, as shown by the evidence, less any payment that may have been made thereon. There is not a word of evidence in this record to show value. The only evidence as to compensation, or commission, was the testimony of one of the plaintiffs that defendant agreed to pay $920 for such services, if rendered. There is evidence that defendant had paid various sums of money to one of the plaintiffs, but not to plaintiffs in their partnership capacity, but it is not claimed by either of .the parties to this action that such payments were, made upon the claim here in suit. It may he that the jury, under the instruction of the court, supposed they were justified in applying such payments upon this claim, and, having found the issues for plaintiffs upon an express contract, they may have arrived at their verdict by deducting from the $920 the amount of these payments. But a moment’s consideration will show that these payments, made by defendant to one of the plaintiffs in the individual capacity of the latter and upon other transactions, could not be applied on the claim in suit. '

Defendant says in his brief that objection was seasonably hut unsuccessfully made below to the combination in one statement of two distinct causes of action, hut the abstract does not hear him out. It is not necessary, however, to pass upon this, or any other of the remaining assignments of error; or further to speculate as to the reasons that may have actuated the jury.

The judgment is wrong upon any hypothesis, and has no basis whatever under the evidence.

Cases directly in point are: Hassell I. W. Co. v. Cohen et al., 36 Colo. 353; Robeson v. Miller, 4 Col. App. 313.

. The judgment is reversed, and the cause remanded. Reversed and remanded.

Chief Justice Steele and Mr. Justice Gabbert concur.  