J. W. McCLUNG, Respondent, v. J. J. MOORE, etc., Appellant, 138 Cal. 181

COOPER, C. Appeal from judgment in favor of plaintiff and order denying defendant’s motion for a new trial. The action was brought to recover of defendant a commission for services in selling 8,497 tons of coal. The complaint contains two counts; the first on an express contract, by which it is alleged that the defendant agreed to pay plaintiff fifty cents per ton as commission; the second for the reasonable value of plaintiff’s services as a broker in selling the coal, which, it is alleged, was $3,500.

The second count was abandoned during the trial, leaving the contest solely on the express contract as alleged in the first count. The case was tried before a jury, and a verdict rendered for plaintiff in the sum of $764.73, for which sum judgment was entered. No error is claimed as to the admission or exclusion of evidence, nor as to any instruction given or refused. No claim is made as to the insufficiency of the evidence to justify the verdict, if it had been for a larger amount.

But the sole contention of defendant’s counsel is, that the jury disregarded the instructions of the court, and that its verdict, if for the plaintiff, should have been for $2,988.50, the amount that was due plaintiff if the express contract was found. The.court instructed the jury that the plaintiff relied solely upon the express contract, and that if they found that the contract was made as alleged, then their verdict should be for plaintiff in the amount claimed.

The court further instructed the jury, that “if, on the other hand, you find that no special agreement was made, then your verdict should be for the defendant.” As the verdict was not for defendant, the jury found by implication that there was a special agreement, as testified to by plaintiff. The court told the jury that if they found such special agreement, then the plaintiff should have a verdict for the amount claimed. The jury disregarded the instruction as to the amount of its verdict, thereby giving plaintiff a verdict for $2,223.77 less than he should have had under the express agreement.

While the plaintiff might have appealed and claimed that the verdict was injurious to him by being for less than he was entitled to under the agreement, it cannot be claimed by defendant that the error committed by the jury injured him. He does not contend that the evidence would not have supported a verdict for the full amount claimed by plaintiff. If it would support a verdict for $2,988.50, it supports the verdict for $764.73. The greater includes the less. It is claimed that the jury found for the plaintiff on the second count contrary to the instructions of the court. We cannot so presume.

The court expressly told the jury that the second count was abandoned, and that if they did not find a contract the verdict should be for defendant. We must presume that the jury obeyed the instructions of the court in order to sustain their verdict. All presumptions here are in favor of the verdict. We cannot presume, in face of the verdict, that the jury obeyed the instruction as to the amount, but the defendant cannot complain of error which did him no injury. The judgment and order should he affirmed. Chipman, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed. Harrison, J., Van Dyke, J., Garoutte, J.