On Motion for Rehearing.
[5] Appellant’s third assignment was that the trial court erred in overruling his motion for a new trial, “because the verdict of the jury is excessive in this, that the plaintiffs only claim that the defendant represented the gin property to be worth $4,750, and the plaintiffs’ own witnesses testify that said property was worth from $4,000 to $4,400, and the undisputed evidence shows that, even if the plaintiffs are entitled to recover at all, they were only entitled to recover two-thirds of the difference between what said property was represented to be worth, and what it was actually worth.” In disposing of the assignment, we called attention to testimony which would have supported a finding that two-thirds of the damages recoverable amounted to a sum in excess of that named in the verdict, and did not undertake to decide whether the contention made that the undisputed testimony showed that appellees were entitled to recover only two-thirds of the damages was supported by the record or not. In the motion it is insisted it cannot be assumed that the verdict of the jury-in favor of appellees represented only two-thirds of the damages suffered, in view of the fact that the court in his charge instructed the jury, if théy found for appellees, to measure their damages by the entire difference between the value of the gin property as appellant represented it to be and its reasonable value. We agree such an assumption should not be indulged in the face of such a charge, and that, unless the assignment on other grounds should have been overruled, the motion should be sustained.
The testimony was not undisputed, as appellant asserts it was, that appellees owned only a two-thirds interest in the gin property. Appellees carried on their business as real estate brokers under the firm name of “The Jones Land Company.” Appellee Jones testified: “Mr. Owens was never a member of the Jones Land Company. The agreement that the Jones Land Company had with Mr. Owens as to paying him for any customers •that he brought to us, we were to divide equally with him — share equally. Mr. Owens never had any trade with Mr. McOutchen, nor was he any party to a contract with McOutchen. There was never any agreement that Mr. Owens was to have any interest in the gin business; it was agreed that we were to pay Mr. Owens his part of whatever commission we realized.” The testimony quoted, if it stood alone — and it did not, for there was other testimony to the same effect — was sufficient to support a finding that the transaction as to the gin property was entirely between appellant and appellees, and that the only right which accrued to Owens as a result thereof was a right to demand of appellees that they account to him for a sum equal to one-third of the value of the property accepted by them as their commissions on the sale of the Mc-Cutchen land to appellant. It is not pretended, if appellees were entitled to all the damages recoverable for the deceit, that the verdict is excessive. As the testimony warranted a finding that appellees were so entitled, the assignment in question properly was overruled. No complaint was made because of the failure of the court to submit as an issue whether appellees were entitled to recover all the damages or not, and no request for the submission of such an issue was made.
The motion is overruled.