Thompson-, J.,
delivered the opinion of the court.
The petition contains what purports to be two counts. The first count is on a quantum meruit, to recover for the value of services rendered by the plaintiff ’s testator, at the special instance and request of the defendant, in procuring donations of money and lands to aid in the construction of the defendant’s railroad, and also in circulating petitions among the' citizens of Stoddard county, and thereby inducing the county court of Stoddard county to consent to a conveyance by the Cape Girardeau and Bloomfield Gravel and Macadamized Road Company to the .defendant of eleven thousand, six hundred and twenty-nine acres of land, which the county court had donated to the gravel road company. The second count was drawn on the idea of stating a cause of action on a special contract, but it fails to state any such cause of action. It recites that on the twenty-eighth of April, 1881, the plaintiff (meaning, no doubt, the plaintiff’s testator) .submitted to the defendant a proposition in writing, therewith filed and marked Exhibit A., which proposition the defendant then and there accepted, and authorized this plaintiff to commence work under such contract. It then sets out .the rendition of the services as they are set out in the preceding count, and concludes as follows: “That this defendant has failed, neglected and refused to pay this plaintiff ten per cent, of the subscription thus obtained, or any other 'sum; that the subscriptions obtained, as herein set out, are reasonably worth the sum of twenty-five hundred dollars, and that the plaintiff’s commissions on said sum in accordance with his agreement would be the sum of twenty-five hundred dollars, and for which amount, with costs of suit, he asks judgment” This second count nowhere states, except inferentially as last quoted, that the defendant agreed •to pay the plaintiff a commission of ten per cent, on the [17]*17money and lands which he should procure to be donated to the defendant. The most that can be said for this second count is that it might possibly stand as a count for the reasonable value of the services therein described. The answer was a,general denial and a plea of the statute of limitations. The defense of the statute of limitations may be laid out of view, because it does not form the subject of an assignment of error. The plaintiff recovered a verdict and judgment, and the defendant prosecutes this appeal, and assigns several errors, among which are a want of evidence to sustain the verdict.
There was no evidence of the reasonable value of the services, except so far as they were fixed by the terms of a special contract, which no doubt was the contract which the plaintiff intended to plead in the second count of the petition. The only evidence of this contract was furnished by an extract from the defendant ’s answer in the former action between the same parties upon the same subject-matter. That answer recites that the contract under which, if at all, the plaintiff is entitled to recover, was “a certain contract made and entered into by and between John Albert and this defendant on or about the twenty-ninth day of April, 1881, by which it was contracted and agreed that the said Albert was to engage in soliciting subscriptions for the purpose of the extension of defendant’s road from Delta to Lakeville in Stoddard county, Missouri, and to do such other matters pertaining thereto to the best of his ability, and for the interest' of the road, for a commission of ten per centum on all subscriptions made or obtained by him, to be paid on the delivery of the subscription notes and title bonds of realty,, by note or notes from defendant,” etc. As to the amount of services performed by the plaintiff’s testator under this contract, the answer admits that he procured donations of money and land to the amount of eight hundred and [18]*18fifty dollars, upon which, he was entitled to a commission of ten per cent.; it also recites that he presented to the defendant his account, for the sum of eighty-eight dollars and twenty-five cents for his traveling expenses, and that the defendant paid him seventy dollars on account thereof, leaving a balance of eighteen dollars and twenty-five cents which the defendant is ready and willing to pay. The testimony of Mr. Wheeler, the defendant’s secretary, who had charge of the defendant’s records, was to the effect that all the money which the defendant ever collected on notes procured by the plaintiff’s testator amounted to six hundred and seventy-one dollars. His statement.of the expense account was, however, exactly as stated in the defendant’s, answer, in the former suit. We take it that the plaintiff was entitled to recover, on any theory, the amount, due him as solemnly admitted by the defendant in its-answer in the former suit, no payments having been-, either pleaded or proved; and we must, therefore, hold, that the plaintiff was entitled to a judgment in the sum of one hundred and three dollars and twenty-five centsuhder the undisputed evidence.
But the judgment, which the plaintiff recovered,, amounted to the sum of twelve hundred and seventy-four dollars and ninety cents, and the great excess over the amount, which the undisputed evidence shows to be due, is to be accounted for on the assumption that the jury found that, under the contract which the plaintiff attempted to plead in the second count of his petition, and which he proved by the quotation from the defendant’s answer in the former suit above given, he rendered services to the defendant of the difference in value between what was. undoubtedly due him, as above stated, and what the jury found, in procuring for defendant a conveyance by the gravel road company of eleven thousand, six hundred and twenty-nine acres of land, as stated in both counts of his petition. We [19]*19are unable to find substantial evidence in the record to support such a finding.
It appears that there was a company called the Cape Girardeau and Bloomfield Gravel and Macadamized Road Company, to which the county court of Stoddard county had donated twenty thousand acres of swamp lands. It also appears from the plaintiff’s petition that the county court of Stoddard county had subscribed for eight thousand shares of the capital stock of this gravel road company.
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Thompson-, J.,
delivered the opinion of the court.
The petition contains what purports to be two counts. The first count is on a quantum meruit, to recover for the value of services rendered by the plaintiff ’s testator, at the special instance and request of the defendant, in procuring donations of money and lands to aid in the construction of the defendant’s railroad, and also in circulating petitions among the' citizens of Stoddard county, and thereby inducing the county court of Stoddard county to consent to a conveyance by the Cape Girardeau and Bloomfield Gravel and Macadamized Road Company to the .defendant of eleven thousand, six hundred and twenty-nine acres of land, which the county court had donated to the gravel road company. The second count was drawn on the idea of stating a cause of action on a special contract, but it fails to state any such cause of action. It recites that on the twenty-eighth of April, 1881, the plaintiff (meaning, no doubt, the plaintiff’s testator) .submitted to the defendant a proposition in writing, therewith filed and marked Exhibit A., which proposition the defendant then and there accepted, and authorized this plaintiff to commence work under such contract. It then sets out .the rendition of the services as they are set out in the preceding count, and concludes as follows: “That this defendant has failed, neglected and refused to pay this plaintiff ten per cent, of the subscription thus obtained, or any other 'sum; that the subscriptions obtained, as herein set out, are reasonably worth the sum of twenty-five hundred dollars, and that the plaintiff’s commissions on said sum in accordance with his agreement would be the sum of twenty-five hundred dollars, and for which amount, with costs of suit, he asks judgment” This second count nowhere states, except inferentially as last quoted, that the defendant agreed •to pay the plaintiff a commission of ten per cent, on the [17]*17money and lands which he should procure to be donated to the defendant. The most that can be said for this second count is that it might possibly stand as a count for the reasonable value of the services therein described. The answer was a,general denial and a plea of the statute of limitations. The defense of the statute of limitations may be laid out of view, because it does not form the subject of an assignment of error. The plaintiff recovered a verdict and judgment, and the defendant prosecutes this appeal, and assigns several errors, among which are a want of evidence to sustain the verdict.
There was no evidence of the reasonable value of the services, except so far as they were fixed by the terms of a special contract, which no doubt was the contract which the plaintiff intended to plead in the second count of the petition. The only evidence of this contract was furnished by an extract from the defendant ’s answer in the former action between the same parties upon the same subject-matter. That answer recites that the contract under which, if at all, the plaintiff is entitled to recover, was “a certain contract made and entered into by and between John Albert and this defendant on or about the twenty-ninth day of April, 1881, by which it was contracted and agreed that the said Albert was to engage in soliciting subscriptions for the purpose of the extension of defendant’s road from Delta to Lakeville in Stoddard county, Missouri, and to do such other matters pertaining thereto to the best of his ability, and for the interest' of the road, for a commission of ten per centum on all subscriptions made or obtained by him, to be paid on the delivery of the subscription notes and title bonds of realty,, by note or notes from defendant,” etc. As to the amount of services performed by the plaintiff’s testator under this contract, the answer admits that he procured donations of money and land to the amount of eight hundred and [18]*18fifty dollars, upon which, he was entitled to a commission of ten per cent.; it also recites that he presented to the defendant his account, for the sum of eighty-eight dollars and twenty-five cents for his traveling expenses, and that the defendant paid him seventy dollars on account thereof, leaving a balance of eighteen dollars and twenty-five cents which the defendant is ready and willing to pay. The testimony of Mr. Wheeler, the defendant’s secretary, who had charge of the defendant’s records, was to the effect that all the money which the defendant ever collected on notes procured by the plaintiff’s testator amounted to six hundred and seventy-one dollars. His statement.of the expense account was, however, exactly as stated in the defendant’s, answer, in the former suit. We take it that the plaintiff was entitled to recover, on any theory, the amount, due him as solemnly admitted by the defendant in its-answer in the former suit, no payments having been-, either pleaded or proved; and we must, therefore, hold, that the plaintiff was entitled to a judgment in the sum of one hundred and three dollars and twenty-five centsuhder the undisputed evidence.
But the judgment, which the plaintiff recovered,, amounted to the sum of twelve hundred and seventy-four dollars and ninety cents, and the great excess over the amount, which the undisputed evidence shows to be due, is to be accounted for on the assumption that the jury found that, under the contract which the plaintiff attempted to plead in the second count of his petition, and which he proved by the quotation from the defendant’s answer in the former suit above given, he rendered services to the defendant of the difference in value between what was. undoubtedly due him, as above stated, and what the jury found, in procuring for defendant a conveyance by the gravel road company of eleven thousand, six hundred and twenty-nine acres of land, as stated in both counts of his petition. We [19]*19are unable to find substantial evidence in the record to support such a finding.
It appears that there was a company called the Cape Girardeau and Bloomfield Gravel and Macadamized Road Company, to which the county court of Stoddard county had donated twenty thousand acres of swamp lands. It also appears from the plaintiff’s petition that the county court of Stoddard county had subscribed for eight thousand shares of the capital stock of this gravel road company. It is then shown-that on July 5, 1881, the county court of Stoddard county made the following order of record: “ Ordered by the court, that, whereas application has been made by the Cape Girardeau Railroad Company to the county court of Stoddard county, Missouri, requesting that it should relinquish all its claim and interest of whatsoever nature to the Cape Girardeau and Bloomfield Macadamized and Gravel Road Company, so that said gravel road company may be enabled to grant the remaining portion of about twenty thousand acres of land donated by this county to said gravel road company, amounting to about thirteen thousand acres, said gravel road company agreeing, in lieu of said relinquishment, to quitclaim the bridge across Castor river and all other interest they may have in Stoddard county, Missouri, to said county, and they further agree to convey said land to said railroad company above named, so as to enable it to build the same to Lakeville, in Stoddard county; and it being further agreed .that the said conveyance by said county is to be made by her trustee, and not to go into force or become valid or binding until said railroad shall have reached Lakeville, — it is, therefore, ordered by the court, that, if a majority of the taxpayers shall petition this court to so relinquish her said interest aforesaid, by the next regular term of this court, the same will be so ordered by this court.” It should be stated that the Cape Girardeau Railroad Company, [20]*20mentioned in this order, was the same company as the present defendant, there having been a change of name.
This order of the county court of Stoddard county implies, from its very terms, that negotiations leading up to it had taken place between three persons; the gravel road company, the railroad company and the county court. It may be imagined that some consideration moved from the railroad company to the gravel road company to secure the relinquishment by it of such a great quantity of land, but what this consideration, if any, was, does not appear. But it does appear from the order that a new and distinct consideration, moved from the railway company to the county court, to induce the county court’s assent to the arrangement, which consideration was that the railroad company should not acquire title to the lands until its railway should have reached the town of Lakeville. It, therefore, undertook, in order to procure such title, to build its road to that point. There is no evidence whatever that the plaintiff’s testator had anything to do with any negotiations leading up to this arrangement. All that he did was to circulate petitions throughout the county, whereby the taxpayers petitioned the county court to make the final order, which the court proposed to make by the above order, in case a majority of the taxpayers should petition therefor, and also to present these petitions to the county court. Even if we could suppose that services of this extraordinary nature were intended by the parties, when they made the contract of April 29, 1881, as recited in the paragraph from the answer in the former suit above quoted, to be covered thereby, yet there is here an entire failure of evidence tending to shok that the plaintiff’s testator did any more than assist in consummating the arrangement, by procuring the assent of a majority of the taxpayers, after it had been fully agreed upon. But the evidence also tends to show that others assisted in circulating [21]*21these petitions; that a mass meeting was held, at which Mr. Houck, president of the railroad, made ,a speech, and that several petitions were circulated at the mass meeting. It also tends to show that the inhabitants of the county were favorable to the arrangement, because they wanted to get the railroad. In short, the evidence leaves no room to doubt that, when the county court had come to the conclusion to yield its assent to the arrangement, upon condition of the railroad being built as far as Lakeville, the rest was a very easy matter. Giving the evidence in favor of the plaintiff the fullest effect, it does not, in the opinion of a majority of the court, tend to' show that he procured the donation of this land by the gravel road company, with the assent of the county court, to the railway company.
But, aside from this, recurring to the terms of the contract of April 29, as above recited from the answer of the defendant in the former suit, it does not appear that the procuring of this donation of land by the gravel road company with the assent of the county court was a service contemplated by the parties to that contract. There was no evidence whatever that the services of the plaintiff’s testator, in circulating the petitions and in presenting them to the county court, were rendered under that contract. Nevertheless, the court, by an instruction, submitted it to the jury to find whether or not such was the fact. This also was error.
If the plaintiff had given evidence tending to show the reasonable value of the services rendered by him, in thus circulating.the petitions and in presenting them to the county court, no doubt he would have recovered a much larger amount than the defendant by its answer in the former suit admitted to be due; but, as there was no such evidence, we must conclude that the plaintiff is entitled to a judgment for no more than one hundred and three dollars and twenty-five cents. He can retain his [22]*22judgment to this extent, if he will remit the remainder within two weeks from the filing of this opinion; otherwise the judgment will be reversed and the cause remanded.
Judge Rombauer concurs; Judge Biggs dissents.