ON MOTION FOR REHEARING.
As will be seen by the syllabus and the statement of facts in the original decision, this was a suit brought in two counts by a real-estate broker for commissions. The first count set up a contract with the defendant owners of the property by which they agreed to pay commissions in the flat sum of $500 if the plaintiff broker would find a purchaser for the property involved at an agreed price of $8000, to be paid according to terms set forth by the petition. The second count alleges that the defendants agreed to pay the plaintiff the usual real-estate commission of five per cent, on whatever price the agent might procure for the property, acceptable to the defendants. The court held in the original syllabus that while these two counts set up different and distinct contracts of listment, both involved an express promise to pay a definite amount, one being definite by the terms of the agreement itself, and the other being definite inasmuch as it was capable of being made so merely by calculating the amount of five per cent, on whatever price the property should be sold for. In neither count do we think the action sounded in quantum meruit. Courts have nothing to do with measuring the quantity or value of services when the measure or value has been already expressly fixed by the contract sued on. It was for this reason that the statement was made that in our opinion neither the first nor the second count was grounded on quantum meruit.
The judgment was reversed for two reasons. First, because the verdict in favor of the plaintiff on the second count was not authorized by the evidence; and, secondly, on account of what we deemed an erroneous statement of the law, as set forth in the excerpt from the charge of the court embodied in the statement of facts. .The reason why we deemed this charge not only erroneous but possibly harmful, and therefore ground for reversal, *5is stated in the fifth division of the syllabus. The charge of the court was dealt with for the reason that since, under our decision, the case would have to be tried again, we felt it incumbent upon us to pass upon such complaints concerning the charge as might' conceivably come up on another hearing.
The main contention which able counsel for defendant in error-urges in his strenuous but courteous motion for rehearing is that this court departs from the exercise of its functions and powers when it undertakes to say what is and what is not authorized by the evidence. In our syllabus it was stated that the jury could have found in favor of the plaintiff on the first count of the petition; that the evidence authorized, but did not require, a finding in his favor on that count. It was stated that the verdict actually rendered in favor of the plaintiff as expressly based upon the second count was altogether unauthorized, in that there was no sort of testimony setting up the contract sued on in that count of the petition. On the contrary, the evidence for the plaintiff, in proving the contract as alleged in the first count, distinctly and plainly negatives the existence of any such agreement as is alleged by the second count. Had the jury found in plaintiff’s favor upon the disputed issues of the first count, this court would necessarily have affirmed the judgment, provided no errors of law had appeared such as are dealt with in the fifth division of the syllabus. The jury having found against the first count, although under the evidence it might have done otherwise, and having found in favor of the second count, which according to plaintiff’s own evidence it was wholly unauthorized to do, this court, of necessity, must hold that the verdict was contrary to law, as being without evidence to support it. It is true, as counsel for defendant in error strongly asserts, that nothing is better settled than that issues of fact are for the jury, that this court was established for the correction of errors of law, and that the verdict of a jury as approved by the trial judge is conclusive as to all issues of fact properly submitted to them. It is just as well settled, however, that in a case where an essential allegation of a petition is altogether without any sort of evidence to support it, but on the contrary is contradicted by all the evidence in the case, including that of the party in whose favor the verdict was rendered, the legality *6of the verdict does not involve an issue of fact, but such an unsupported verdict must be set aside as being contrary to law.
Rehearing denied.