(dissenting). — This is the second appeal in this cause; the first is reported, 103 Mo. 70. The present appeal was • assigned to the first division where a decision was announced affirming the judgment (24 8. W. Rep. 1058). Afterwards a rehearing was granted. Upon the rehearing the cause was transferred to the court in banc, the judges of the division being equally divided in opinion.
There has been no disagreement on the points-, touched by the decision reached in the twenty-fourth Southwestern Reporter, except as to the point mentioned in the first paragraph of that decision. All the other assignments of error, the divisional judges agreed, were groundless; and that is the view also taken by the court in banc.
There remains, therefore, no need to discuss at. this time, any other phase of the case than that which my learned brother Macearlane, in the foregoing opin*603ion, has condemned as exhibiting a fatal error. This-supposed error is in substance that “plaintiffs were permitted to recover upon an alleged agreement on which they had not sued” (to quote the charge as contained in the brief of defendant’s counsel).
We shall examine the merits of this assignment of error from several standpoints. But before doing so, its real value will be made more apparent if we place the allegations of the petition, in regard to the terms of agreement, by the side of the written memorandum, which is said to fall fatally short of supporting those allegations. (We will italicize the parts of the memorandum which are thought to show a different agreement from that stated in the pleading.)
CONTRACT ALLEGED.
“The plaintiffs were to have said real estate surveyed and replatted in small tracts or lots, put into a condition to sell, to take charge of the sale thereof, and to sell the said real estate as the same should be replatted; that, out of the proceeds of said sale, or sales, there were to be paid, first, the necessary expenses attending said survey, re-platting and putting of said ground into condition for sale; then, next, there was to be paid to the said defendant the sum of $30,000 and interest on $15,000 thereof, at the rate of eight per cent, per annum from the date aforesaid until said $30,000 should be paid; then the balance of 'the proceeds arising from said sale was to be equally divided between the plaintiffs and the defendant."
THE MEMORANDUM.
“1 will handle the Troost Ave. tract on the following terms: Thirty thousand dollars to be paid in cash or first mortgage notes secured on the property, and to be paid out of the first sales made after commission of one dollar per front foot is paid. All notes to bear interest at not less-than eight per cent., payable semiannually, without G. M. Cole’s written consent, payable one, two, three, four and five years from date, at the Bank of Commerce. The property to be sold so as to net not. less than $30,000 profit clear of all expenses, profit and as much more as may be readily obtained; all to-be sold in two years from date of filing plat; title to remain in said Granville M. Cole until he shall consent to make other arrangements, and in the event of there being more than $30,000 obtained in net profits for said ground, said net profits to be equally divided between G. M. Cole and T. J. Green; the management to be left with T. J. Oreen.”
*604One of the plaintiffs testified to a verbal agreement with the defendant, substantially to the effect stated in the petition. Upon cross-examination of that witness, the pencil memorandum, above quoted, was produced by the defendant. It was unsigned by anyone. Plaintiff admitted that he wrote it, after the verbal contract had been closed, and gave it to defendant, intending to have a written agreement made; but defendant, being in a hurry at the time, did not sign it, promising to send a signed copy later to plaintiff (as has been fully described by our brother Maceaklane).
Plaintiff T. J. Q-reen repeated the substance of that statement in various forms.
The contention now is (and it has found favor with a majority of our number) that, because he thus stated that the memorandum was agreed upon, plaintiffs can not sustain a judgment on the contract alleged in the petition.
I. Let us first concede (for the argument) the full claim advanced as to the so-called “failure of proof. ” That is to say, let us assume that the plaintiffs’ testimony tends to prove a contract in the language ' of the memorandum, and that plaintiffs got a verdict upon the contract stated in the petition.
The difference (so viewed) is simply this: That plaintiffs established an agreement containing a stipulation to pay a “commission of one dollar per front foot,” in addition to the -substance of the other terms of the agreement alleged in the petition (with one supposed exception, to be noted later).
Such a state of the case is thought by some of our brethren to disclose a failure of proof; one of those fatal blemishes demanding a reversal of the judgment, and all the consequences that follow such an order.
Just at this point it certainly would be well to *605turn back to some elemental rules of pleading and practice, applicable to these facts.
The common law system required a pleader to state no more of a contract than he needed to base his recovery upon.
If he proved the agreement alleged, he could recover, though his proof might disclose that there were other terms of agreement (whether written or oral) which he had wholly omitted to plead.
In 1812 it was said by Mansfield, J., that “in assumpsit, it is sufficient if the declaration shows so much of the terms beneficial to the plaintiff in a contract, as comprehends the point for the failure of which the plaintiff sues.” Cotterill v. Cuff (1812), 4 Taunt. 285.
The rule was not peculiar to assumpsit, but applied to all actions upon contract; and Mr. Chitty in his great work on pleading, after announcing the rule, added that 1 ‘the statement of additional matter would be needless prolixity.” 1 Chitty on Pleadings [16 Am. Ed.], 1879, *p. 311.
If any further authority for so obvious a proposition be required, it may be found in 1 Saunders’ Pleading and Evidence [5 Am. Ed.], 1851, *p. 200.
In the case at bar, plaintiffs make no demand for any “commission of one dollar per front foot.” They do not rely in any way on that part of the terms of the memorandum. Hence, the worst that can be said of their case is that it proved an additional stipulation (on which they make no claim) beyond the terms on which they plant their right of recovery in the petition, and in their instruction which conforms to the petition.
To defeat them now, on account of such a redundancy of proof, by treating it as a failure of proof, is to breathe new life, at this day, into a technicality so barren that the special pleaders of the common law *606had discarded it a hundred years ago, if, indeed, it ever had a place in English jurisprudence.
And such a ruling is supposed to expound the meaning of a modern code of procedure sometimes ■called “reformed.”
The rule that renders it unnecessary to allege any more of a contract than the pleader intends to assert, in order to obtain the particular relief he asks, has been supposed for many years to be the unquestioned law of Missouri. It was stated in Brooks v. Ancell (1872), 51 Mo. 178, followed in Comstock v. Davis (1873), 51 Mo. 569, and again laid down with great clearness in Moore v. Mountcastle (1880), 72 Mo. 605.
It is also approved by one of the earliest commen-. tators on the reformed code. Moak’s Van Santvoord’s Pleadings [3 Ed.], *p. 222.
It should have greater force now as a guide to judicial action than it had at the common law. For, under our present code, “only the substantive facts necessary to constitute the cause of action” should be stated (R. S. 1889, sec. 2055), and irrelevant matter is to be discarded (R. S. 1889, sec. 2057).
If the only objection to plaintiffs’ judgment was that the agreement, which they proved, contained a ■stipulation for a commission of one dollar per front foot, not mentioned in the petition when describing the contract, or in the plaintiffs’ instruction (conforming to the petition), it should be held by this court that the objection is wholly without substance, where the contract, as alleged,, was proved in other respects.
II. Another objection of the same general class as that above discussed is to the effect that the memorandum “contemplates a sale either in bulk or after subdivision into lots, and puts the management entirely in the hands of plaintiff.” It is claimed that the contract alleged in the petition does not so provide.
*607The petition alleged ‘ That defendant entered into a contract with the plaintiffs to put on the market and sell for him the said real estate,” etc.; and (further along) that plaintiffs were “to take charge of the sale ' thereof and to sell the said real estate,” etc. The memorandum contemplates that the land was to be platted into lots; for it refers to the “date of filing plat;” and its whole tenor sanctions a sale, either in bulk, or by lots.
The other difference mentioned, namely: between “the management” .of real estate for the purpose of sale (as recited in the memorandum), and “taking charge of the sale” thereof (as stated in the petition) is too shadowy to sustain any extended comment. The whole transaction, as described in the petition, as well as in the evidence, carries the plain implication that plaintiffs were to manage the sale of the defendant’s land or lots for him, for the purpose of mutual profit.
This variance is referred to by our learned colleague as being substantial. To us it only seems important as indicating the closeness of the scrutiny to which the record on this appeal has been subjected. "We shall make no further reference to it, but devote our attention to the other point of criticism.
III. Our learned brother has expressed the opinion, in reference to the agreement for a commission of one dollar per foot (as contained in the memorandum), that, “this item alone may have made a difference of several thousand dollars in favor of one or other, of the parties;” and, hence, that it is “a matter of substance” that the petition made no allusion to that part of the agreement.
This leads us to consider exactly what this supposed omission in the petition (and in the plaintiffs’ instruction) amounts to.
The above quoted remark warrants the very just *608inference that if it could be shown that the agreement for a commission had no possible bearing on the result of the present litigation, it ought to be discarded, and held insufficient to justify a reversal. We believe that that showing can be made, if it does not appear from what has already been said.
In the course of the testimony of one of the plaintiffs, he explained that the commission of one dollar per front foot (mentioned in the memorandum) was to have been a part of the expenses, as compensation to subagents, if the sale had been made by lots (which it never was). He testified (without objection) on this point:
UQ. Was there ever a word about you selling it on'commission for a dollar a foot? A. No, sir.
' “Q. Is there anything in this written contract which you prepared about a dollar a foot? A. Yes, sir.
“Q. How did it get in there? A. In this way: I explained to Mr. Cole that I usually had an agent to assist me in selling lots, and that when he made a sale one dollar a foot on the amount sold would go to him. That is mentioned as a charge againsfe the property over and above the thirty thousand dollars.”
In giving the terms of the first verbal agreement, the same plaintiff testified that the profits over the price of $30,000 were to be computed “after expenses were paid.” Later, he spoke of the proceeds “over and above $30,000 and expenses;” and, again, of the “net price.”
Under the terms of the memorandum the commission to subagents would have been an item of expense to be deducted from the gross proceeds, if plaintiffs had sold the land by lots after platting it. This, plaintiffs were not allowed by defendant to do, because the latter never returned the plat sent for his approval, and *609later sold the whole tract outright, without the intervention of plaintiffs.
Their present action is based on a breach of the contract to allow them to sell the land for defendant, within the two years agreed upon for that purpose.
Plaintiffs have made no claim in this case for any commission of one dollar per front foot. Their instruction on the measure of recovery contains no allusion to it. That commission was but an expected expense, never incurred.
It was a charge which plaintiffs were authorized to make if the sale had been made by them in the mode they intended; but that sale never happened.
Can it be possible that they must now fail to recover for the damages actually sustained under the contract, because, in stating their case formally, they omitted to refer to a term of the contract which circumstances haye practically eliminated from it? They are entitled to no commission per front foot, under their own evidence (above quoted), explaining the memorandum; and they are no more obliged to refer to that provision of the contract than they would be to any other provision which they do not seek to base a recovery upon. The rule of law stated in the first paragraph above is conclusive of that subject. But stronger yet to the same effect, on the case as it now stands, is the specific declaration of our own code of procedure, as applied to this particular point, that no judgment shall be reversed for any error which shall not affect the substantial rights of the adverse party (R. S. 1889, secs. 2100, 2303).
Would it conform to the demand of substantial justice to send this cause back for a retrial in order to compel, plaintiffs to amend their petition by adding another phrase of description of the contract sued upon, *610notwithstanding plaintiffs can not, and do not, make any sort of demand on account of the new matter they will he compelled to add?
The evidence of plaintiff (quoted above' in this paragraph) tends to show that the verbal contract it describes provided for a credit to plaintiffs for the commission of one dollar per front foot, as part of the expenses of the sale by lots (had the sale been so made). In that particular the plaintiffs’ evidence makes clear what is meant by the somewhat obscure stipulation on that point in the memorandum.
Now we ask, did the trial court err in failing to put into the instruction, authorizing plaintiffs’ recovery, a call for a term of the contract, which term plaintiffs did not sue upon, and make no claim upon? We answer most emphatically, no.
Certainly the learned circuit judge did not err in that particular if the proposition stated in the first paragraph of this opinion is sound, as we believe it to be.
IV. Nor did he err if the commission per front foot did not figure in any manner as an item of damages in plaintiffs’ judgment.
All of our brethren have approved the rule laid down by the trial court as to the right of plaintiffs to recover the profits they would have realized on a sale of the land for $50,000, the price actually received by defendant. He made that sale, January 2, 1886. The only item of expense shown to have been incurred by defendant was for “platting” the land. It was $60. Giving defendant credit for that sum, and for $30,000, the price he was to. get for the land (as stated in the opening lines of the memorandum) would leave the net profits (over the last named figures) $19,940; of which plaintiffs’ share (one half) would be $9,970.
The verdict was for $9,970, July 2, 1891. The petition was filed, January 15, 1886.
*611The date of service of process is not given in this record. Plaintiffs were entitled, under sections 2948 and 5972 (E. S. 1889), to interest at six per cent, per annum from the day of service. But it appears that defendant filed a demurrer, April 17, 1891, and the interest on $9,970 from that date to the verdict plaintiffs had a right to recover, under the court’s finding on the facts.
Plaintiffs were, no doubt, entitled to interest from a much earlier period, since the record refers to a prior trial, without giving its date. But, taking the present record as it stands, they were at least entitled (under the finding for them on the merits, and the rule of recovery affirmed in this court) to the judgment they obtained, granting that the memorandum was the contract, and wholly discarding any allowance to plaintiffs of a commission per front foot.
Erom these cold facts, it is very clear to us, with all respect due to our learned brother, that he fell into grave error in holding (with reference to this commission) that “this item may have made a difference of several thousand dollars in favor of one or the other of the parties.” It is obvious from the amount of the finding that the item was not included in the judgment, even if plaintiffs might have claimed it.
The fact that plaintiffs were entitled to recover at least as much as was awarded them, without bringing in that item, shows that the omission to refer in the petition (or in plaintiffs’ instruction) to that feature of the agreement was a wholly harmless error, if an error at all.
It was held as early as Lavender v. McCloud (1857), 26 Mo. 65, that where an instruction was erroneous, which bore on a question of damages, yet, if the verdict gave no such damages, the error would be disregarded, because “it did not injuriously affect the defendant,”
*612The express terms of the statute governing proceedings in this court forbid the reversal of a judgment, unless the alleged error of the trial court materially affected the merits. (R. S. 1889, sec. 2303.)
Erom the above we believe it clearly appears that, if the pencil memorandum is to be taken as the basis of the recovery, the finding shows that the court did not give plaintiffs any allowance for a commission per front foot.
Not only, however, does the verdict show no prejudice to defendant in the conclusion reached by the trial court (if it be now assumed that the memorandum was the true contract), but the fact that the case was submitted on the agreement stated in the petition, without referring to the commission per front foot (as called for by the memorandum), was a clear and positive benefit to the defendant.
There is one important difference in the terms of the contract counted on by the petition, and the terms of the memorandum. It is a difference that has as yet received no notice. But it should not be overlooked.
The petition alleges one feature of the agreement to be that defendant was to have credit for interest at eight per cent, per' annum on $15,000 of the selling price, from the date of the agreement sued on, until the net $30,000 (the purchase price) should be paid.
No such stipulation is in the pencil memorandum.
The alleged agreement was made early in July, 1885, and the defendant’s sale, January 2, 1886. So the defendant’s credit on that account (at eight per cent.) would be about $600.
The court submitted the cause on an instruction which gave defendant the benefit of that interest clause of the contract, in accordance with plaintiffs’ account of the first verbal agreement. That phase of the contract was much more favorable to defendant than the *613memorandum, touching the amount of the purchase price.
If to these facts it be added (as already shown) that the judgment includes no damages on account of that part of the memorandum which refers to the commission per front foot, we should then very much like to have someone point out, if possible, how defendant was in any respect prejudiced by the action of the court in submitting the cause on the agreement recited in the petition, in view of the finding for plaintiffs for only $9,970 damages? How can it be said, upon those facts, that the mode of submitting the cause was injurious to defendant by omitting a reference to the commission per front foot? That omission was, at worst, harmless; and, on the peculiar facts of this case, it may have been positively advantageous to the defendant.
It is the duty of the court, under our code of procedure, to look closely at the actual results of the circuit rulings complained of, and where they appear to involve no substantial injury to the complaining party, the judgment should not be disturbed.
Y. The concession, as to the effect of the evidence in regard to the memorandum, on which much of the foregoing commentary is based, goes far beyond the demands of the law on the subject.
The trial court was not bound to accept the memorandum as the whole agreement between these parties. The memorandum was not signed by either party. Defendant repudiated it, as well as any agreement whatsoever on his part.
Standing alone, the memorandum amounted to nothing. It was a mere proposal. It was necessary for plaintiffs to show that defendant agreed to it, in order to make its terms binding on defendant.
*614No question as to the statute of frauds is presented by the appeal.
Was it not competent,for plaintiffs to show what defendant in fact agreed to, verbally?
The rule of law in this state in relation to an agreement resting partly on written and partly on verbal evidence is this:
“Where there is but a memorandum of a contract, and it does not purport to be a complete expression of the entire contract, or where a part only of the contract is reduced to writing, the matter omitted may be supplied by parol evidence.” State ex rel. v. Hoshaw (1889), 98 Mo. 358.
The same idea was expressed at a much earlier date in Rollins v. Claybrook (1856), 22 Mo. 405; and could be supported by many more precedents, if necessary.
The contract charged to have been actually made rested partly on defendant’s verbal agreement.
Plaintiff’s testimony tended to show a complete oral agreement before the memorandum was drawn or delivered. The memorandum and the oral evidence are not in conflict. The one merely adds terms to the other as has been already shown. It was competent for the parties to add to the terms of either agreement in that manner. Edwards v. Goldsmith (1851), 16 Pa. St. 43.
The very last written statement of the substance of the agreement is contained in plaintiff’s' letter to defendant, October 5, 1885 (quoted in brother Maceaelane’s opinion). The words “net profits” in that letter accord with the plaintiff’s testimony that the commission per front foot for the benefit of subagents, was a part of the contemplated expenses of the scheme; for there is no other language in the letter that can be construed to refer to such a commission.
On the written and oral evidence we think there *615was abundant proof of that part of the contract which the petition set out and relied upon. As we have already tried to show (in the first paragraph above), it is wholly immaterial that other stipulations (on which plaintiffs make no demand) were also proved by this evidence.
The first instruction given for plaintiffs only required a finding of the terms of agreement counted on.
The second instruction given for defendant was in entire accord with the plaintiff’s first instruction.
The defendant’s third instruction was much too favorable to him, because it appears to require the proof of the contract to go no further than the allegations, and hence ignores the rule of pleading discussed in the first paragraph of this opinion. In that- respect the third instruction was erroneous; but as its error was in favor of defendant he can not complain of .the court’s action m that-regard. Flowers v. Seim (1860), 29 Mo. 324; Reardon v. Railroad (1893), 114 Mo. 384. Even if that error (made at his request) produced a conflict in the instructions (which, however, we do not say it did), such an error could not be correctly held to be ground for reversing the judgment. Alexander v. Clarke (1884), 83 Mo. 481; Schmitz v. Railroad (1893), 119 Mo. 275.
The case was tried without a jury before a judge of long experience. The only substantial issue was whether, in fact, a completed and closed agreement had been made, as plaintiffs claimed, or whether the parties never got beyond mere negotiations for a contract, as defendant claimed.
On that issue the court held for plaintiffs; and, as trier of the facts, found that the evidence sustained an agreement to the effect stated in the petition. The court (as the verdict shows) allowed plaintiffs no damages for any commission of one dollar a foot. The *616evidence supported the judgment; and we think no substantial ground to disturb it has been pointed out.
VI. Some other objections to the result in this court could be mentioned; but, as this opinion has already gone to a length far beyond our expectations, we forbear further comment.
No other assignment of error than that discussed in the prevailing opinion is regarded by any member of this court as sufficient for a reversal, and it is, therefore, unnecessary to discuss other points of the.appeal; but we refer to the divisional opinion concerning them.
In our opinion the judgment should be affirmed.
Brace, C. J., and Robinson, J., concur in this opinion, and join in dissenting from the decision of the majority of the court.