Vaughan v. Cooper

Hart, J. On the 3d day of August, 1910, W. H. Cooper instituted this action in th.e circuit court against Emmet Vaughan, to recover the sum of $1,000 alleged to be due him for services performed in the sale of certain timber lands owned by Vaughan. Vaughan filed an answer in which he denied that he was indebted to Cooper. W. H. Cooper testified: “In 1908 I was in the employment of a veneering plant at Des Arc, of which Hermann Romunder was the president. Emmet Vaughan owned a large tract of timber land near there, comprising more than a thousand acres. Early in the year 1908 Romunder directed me to go over the lands and make an estimate of the timber on it, at the time Romunder contemplated buying the land. I went over the land and made the estimate simply by viewing the timber. Later on in the spring Mr. Vaughan employed me to go over the land and make another estimate of the timber on it. I was gone three or four days, and made this estimate simply by going over the land viewing the timber. In neither instance did I attempt to make a detailed estimate of the timber. I was in the employ of the veneering plant at the time I made both estimates. As compensation for my services, the plaintiff executed to me the following due bill: “ ‘Due W. H. Cooper, the sum of $1,000, payable upon presentation of this due bill, subject to the agreement held by me. “ ‘5-8-08 Emmet Vaughan.’ “The agreement referred to in the due bill is as follows: “ T agree that the due bill given me this date by E. Vaughan for $1,000 to be void if sale of land fails to go through. “‘5-8-08. - W. H. Cooper.’ “It was understood between us that I should receive a thousand dollars for making this estimate on the timber if Mr. Vaughan should sell the land to any person at any time. The estimate made by me on the timber was to be used in helping to make a sale of the land. Other testimony introduced in the case tends to show that Vaughan sold the land to some parties who live in Chicago, and that they after-wards resold the land to Romunder.” Emmet Vaughan testified: “I did not employ W. H. Cooper to make an estimate of the timber on the land mentioned in the due bill and agreement sued on in this case. Mr. Cooper was at the time in the employment of the veneering plant and made the estimate for Mr. Romunder, who contemplated purchasing the land. I saw him on his return after making the estimate, and urged him to turn in the estimate to Mr. Romunder as quickly as possible so that the trade for the land might be consummated. Mr. Cooper asked me what there was in it for him. He said that he was in a position to make the deal go through or to throw it, just as he pleased. I was in straightened circumstances at the time, and thought it would be better to give him a thousand dollars than to lose the deal with Romunder. So the due bill in question and the agreemént accompanying it were executed. It was understood between us that I should not pay him any money unless the trade which was then on hand with Romunder should be consummated. The agreement had no reference to any other trade that should be made for the land. I afterwards sold the land to some Chicago parties, and they made their own estimate of the timber and in no way relied on the estimate made by Cooper. Afterwards I had to take the land back and have it yet.” • Other evidence was introduced by Vaughan which tended strongly to corroborate his testimony. The plaintiff, Cooper, recovered judgment for $1,000, and the defendant, Vaughan, has appealed. No objections was made to the introduction of evidence, and no objection was made to the instructions given by the court. The defendant did ask instructions additional to those given by the court, but we do not deem it necessary to set them out, for the matters embraced in them are included in the instructions given by the court. The court expressly told the jury that if the defendant did not employ plaintiff to make the estimate, and it was made for other parties, and the plaintiff demanded the thousand dollars from the defendant to make the deal go through, and that deal did not go through, then the plaintiff would not be entitled to judgment in this case, although the land was after-wards sold to other parties. In the other instructions the court fully and fairly submitted the respective theories of the plaintiff and of the defendant to the jury. While the other evidence in the case tends strongly to corroborate the testimony of the defendant, it can not be said that the verdict of the jury is without any substantial evidence to support it. The jury were the sole judges of the weight of the testimony and of the credibility of the witnesses, and under the settled law of this State the verdict of a jury can not be disturbed on appeal where there is any substántial evidence to support it. The plaintiff testified that the estimate made by him was made for the purpose of aiding the defendant in selling the land. That he was to be paid the thousand dollars, for which the due-bill was given, in case of the sale of the land to any one, and that the land was afterwards sold to some Chicago parties. The defendant flatly contradicted his testimony in this respect, and said the thousand dollars was to be paid plaintiff only in case the sale to Romunder was consummated, and said sale was never completed. The attendant circumstances as well as the other evidence tends strongly to show that the defendant was telling the truth; but, as above stated, the jury believed the plaintiff, and, under the settled law of the State, the verdict is binding on us. It follows that the judgment must be affirmed.