Edward H. Ludlow et al., Respondents, v. Nathaniel Dole, Appellant

Edward H. Ludlow et al., Respondents, v. Nathaniel Dole, Appellant. (Argued April 26,1875; decided May 25, 1875.) Where, in an action for labor and services, the complaint seeks to recover on a quantum meruit, and upon the trial the only evidence of the value of the services is proof of an agreement on the part of defendant to pay a specific sum, this constitutes the measure of damages. • A direction therefore in such case, by the court to the jury, that they must render a verdict in favor of plaintiff for that sum, or find for the defendant, is not error. This was an action to recover for services alleged to have been rendered by plaintiffs, as brokers for defendant, in the sale of certain real estate. (Reported below, 1 Hun, 715.) The complaint did not set forth any special contract for services, but asked to recover what the services were reasonably worth. Upon the trial the only evidence as to value was testimony, on the part of plaintiffs, that defendant agreed to pay them one per cent on the sales. This per centage amounted to $4,565.31. After the jury retired they returned and asked the court whether they could find a verdict for the plaintiffs for a less sum than that amount. The court answered no, and instructed the jury that they must render a verdict for the plaintiffs for $4,565.31, or find for the defendant. Held, no error; that in law the sum agreed upon became a quantum meruit, and in the absence of other evidence constituted the measure of damages which plaintiffs'were entitled to recover, if at all. Wm. W. Niles for the appellant. B. F. Watson for the respondents. [MAJORITY — Miller, J.,] Miller, J., reads memorandum for affirmance. All concur. Judgment affirmed.