Schmidt v. Keeler

Mr. Justice Waterman delivered the opinion oe the Court. We are compelled to reverse the judgment in this case because of a failure by the plaintiff to make certain proof essential to his recovery. No conveyance to the purchaser, claimed to have been secured by plaintiff, was made; it was therefore incumbent on the plaintiff to show that such intending purchaser was ready, able and willing to buy; no proof of his ability to buy was made; the only evidence was that he (Sloan) orally agreed to buy. Appellee says that neither the readiness nor ability of Sloan to buy was disputed at any time. That is not sufficient. Appellant by his pleading denied every element of appellee’s case, and there was no evidence that either the readiness or ability of Sloan to purchase was ever admitted. Upon the trial there was no such admission. Appellant should have been permitted to testify that appellee did not have an exclusive right to sell the house. The judgment of the Circuit Court is reversed and the cause remanded.