APPEAL AND ERROR-RIGHT OF DEFENDANT TO NEW TRIAL WHERE PLAINTIFF IS ENTITLED TO ALL OR NONE AND VERDICT IS INTERMEDIATE

In an action on an express contrast, plaintiff sued for $1750, representing the agreed 5 per cent commission on the sale of real estate. Defendant denied the validity of the contract, and there was no issue as to the amount of liability if liability existed. The instruction to the jury was that plaintiff was entitled to 5 per cent commission if entitled to recover. The jury returned a verdict for $875, half the amount claimed.

Defendant's motion for a new trial was denied. Held, although the verdict was unauthorized as to plaintiff, there was no error as to defendant and he cannot complain of the jury's failure to award plaintiff the full amount to which he was entitled. Johns v. League, Duvall & Powell, (Ga. 1947) 45 S.E. (2d) 211.