Hamilton v. Clippert

*443 Fellows, J. (after stating the facts). It is insisted that the trial court erred, in permitting the plaintiff to testify to statements claimed to have been made to him by defendant. It is insisted that these *444 statements had reference to written instruments, and that parol proof as to such statements was inadmissible. We should first consider this question, because, if this testimony was not admissible, then only the papers were before the court. It will be noted from the statement of facts that these statements of defendant amounted to an admission that defendant had sold the property to the Merchant Company, an admission against interest. This was an admission of a fact as distinguished from one of law. Whether defendant had sold the property to the Merchant Company was a question of fact. Whether the papers he had executed conveyed good title or constituted a binding contract was, of course, one of law. But an admission against interest by a party as to the contents of a paper is admissible in evidence without producing the paper. New York Central his. Co. v. Watson, 23 Mich. 486. In 22 C. J. p. 1016, § 1301, it is said: “It has been held in many jurisdictions that the best evidence rule does not apply to parol admissions in pais and against interest, or acts equivalent thereto, and that such admissions are competent as primary evidence against the party making them, although they involve what must necessarily be contained in a written instrument, in a corporate vote, or in a public record.” This testimony of defendant’s admission against interest was admissible. With this testimony in the case, together with the testimony that defendant agreed to protect plaintiff in his commission, substantially an agreement to pay the same, a much different case is presented than as though Exhibit 3 was the only evidence of a sale in the record. Indeed, defendant’s counsel, from his lengthy brief on the subject, has apparently become so engrossed in the intricate legal questions involved in the construction of Exhibit 3 that he overlooks the fact that his *445 client’s admissions were in the case, took the question of a sale to the Merchant Company to the jury, and that they were for the consideration of the jury, together with the other testimony in the case, including Exhibit 3. From the testimony in the case the jury might well infer that both the defendant and the Merchant Company treated Exhibit 3 as a contract of sale and acted accordingly, and they could also infer from the circumstances in the case that Sulzberger was acting for the Merchant Company. Exhibit 3 was in form both an option and a listing contract. Under the holding of this court in the recent case of Greenough v. Willcox, 238 Mich. 52, handed down since this case was tried, it should be treated as a listing contract and not subject to the payment of the specific tax provided for in Act. No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.). The testimony in the case, some of which we have quoted, took the question of procuring cause to the jury. The defendant’s brief criticizes the following language in the charge: “The plaintiff has asked me to charge you, and I do, that if you believe from the evidence in the case that Mayer B. Sulzberger was acting for and in behalf of the Samuel A. Merchant Company when he obtained the execution of the agreement, Exhibit 3, that is this paper upon which the writing is indorsed on the back (meaning the Sulzberger contract), then I charge you that the said Samuel A. Merchant Company would in such case be the real party in interest, and the agreement, Exhibit 3, would in law be the agreement of the Samuel A. Merchant Company. That is, if Mr. Sulzberger was acting as an agent for them, even though he did not disclose or make known to the Clipperts that he was acting as agent, still it would be their agreement.” The criticism against this instruction is that the jury would be led to infer that Exhibit 3 was a binding *446 agreement of sale. If this was all that was said on this subject there would be force in defendant’s contention, but it was immediately followed by the following statement by the court: “As I have already charged you, this agreement is not in itself a sale. It is a mere proposal for a sale, and the question is whether it was followed up by such acts and such transactions as actually to make a sale.” And before that the trial judge had charged the jury as to the legal effect of the exhibit. He said: “Now, I will charge you that this paper, whatever it may be, is not in itself a sale of this land. If 24 hours after this paper was signed Clipperts had tried to make Mr. Sulzberger buy the property they ,could not do so because he did not agree to buy it in this paper. A sale or a contract of sale must be binding upon both parties. There cannot be a seller without .a buyer. There cannot be a sale without a purchaser, and Clipperts could not be said to have sold this property or to have contracted to sell it unless somebody else bought it at the time or contracted to buy it, and in so far as this paper, taken by itself, is concerned, there was no actual sale.” We must, of course, consider the charge in its entirety. So considered, the defendant’s rights were fully protected. If defendant had sold the property to the Merchant Company, as plaintiff testified he admitted he had done, and plaintiff was the procuring cause of the sale, he had earned the commission. If defendant had only executed Exhibit 3, plaintiff had not earned his commission, and the trial judge so instructed the jury. The other assignments of error have been examined, but do not need discussion. The judgment will be affirmed. Sharpe, C. J., and Bird, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred.