Nock v. Guthrie

Opinion by Mr. Justice Potter, In this case, the plaintiff, a real estate broker, sought to recover compensation for effecting the sale of certain real estate. He alleged that the amount of his compensation was fixed at $3,000 by an oral agreement made prior to the contract of sale of the property, which he negotiated. The defendant denied making an oral agreement for compensation, and contended that the agreement for compensation was conditioned upon the title being passed, and the settlemént actually made. The testimony at the trial was contradictory, but evidence was offered tending to show that the sale failed of consummation by reason of the defendant’s fault. The disputed questions of fact were submitted to the jury, and the verdict was for the plaintiff. Counsel for appellant complains in his eighth and ninth assignments of error [320] of the admission of certain testimony as being irrelevant. It appears, however, that it was in part at least in direct denial of any condition being attached to the agreement for the payment of commission, and the reference to the extension of time for settlement in the sale of adjacent property seems to have been by way of explanation for the meeting between the- defendant and one of the purchasers, who was also one of the proposed purchasers in this case. Viewed in this light the testimony was relevant, and we see no error in its admission. Counsel for appellant also contends that the trial judge erred by assuming in his charge that an oral contract was made, and in leaving to the jury only the question of its subsequent modification. But we do not so read the charge. The trial judge reminded the jury that the oral agreement was a matter of serious dispute between the parties, and that the question whether or not it was made was for them to determine. The contention of the defendant that the commission was not to be paid until title was taken by the buyers was clearly set forth, and this after all was the real and substantial dispute between the parties. The plaintiff contended that when he brought the seller and the purchaser together, and procured the execution of a contract of purchase and sale, his commission was earned, and his right to it was not defeated by the failure of the defendant to consummate the transaction, through his own fault. Furthermore, counsel took no exception to the charge, and the eight points which he submitted to the court were affirmed. The subject matter of the first six assignments of error all relates to the affirmance of plaintiff’s points for charge. It has not been included by counsel in his statement of the questions involved, nor has it been pressed in the argument. These assignment will not therefore be considered. The judgment is affirmed.