Sample v. Rand

Deemer, J. [618] 1 2 3 [617] E. D. Band and tbe Carson & Band Lumber Company were tbe joint owners of some lots in tbe city of Keokuk. Prior to tbe death of Band, wliicb occurred in February, 1897, be bad some negotiations with one Hubinger,. through plaintiff, Sample, looking to tbe sale of these lots. Band left bis mother, Carrie A. Band, one of tbe defendants,, as bis sole and only heir. It is claimed that, subsequent to618 the death of Band, Charles W. Band, a brother of the de•ceased, who resided at Burlington, came to Keokuk, and requested plaintiff, Sample, to find a purchaser for the property. Sample claims that pursuant to this request he found Hubinger, and that Charles W. Band thereafter sold the property to him. Defendants claim that Charles W. Band -knew of the negotiations theretofore pending with Hubinger, and that he merely requested Sample to call on Hubinger, .and see if he still desired to purchase the property, and would give $7,000 therefor; that, pursuant to this request, Sample called on Hubinger, and instead of ascertaining if he would give the sum nanred, told him (Hubinger) that he could get the property at his own price, and that he thought he could buy it for $6,000. The dispute as to the nature of the request and the character of the employment was submitted to the jury and it evidently found plaintiff’s version of the affair the true one. Defendants asked .an instruction to the effect that Sample owed his employer his best efforts and entire good faith, and that unless the jury found that he in good faith attempted to obtain the price asked for the property he could not recover. The issues were made by a petition, in the usual ■form, to recover a commission for finding a purchaser of defendants’ property, and a general denial of the allegations ■thereof, found in defendants’ answer. No issue of fraud or want of good faith was tendered. Dor this reason alone, the ■court was justified in refusing the instruction asked. If it relates simply to the right of plaintiff to recover, the matter was covered in the charge given by the court. If it related, however, to the question of fraud or want of good faith, it •asked the submission of a question not made by the pleadings. Moreover, there was a dispute in the evidence regarding the question of price being definitely fixed for the property when plaintiff claims he was em■ployed. The instruction asked assumed that a price was [619] fixed, and for that reason the court was justified in refusing it. Instruction No. 8 reads as follows: “If the jury find, ■from a fair preponderance of the evidence, that the defendant Charles W. Rand employed the plaintiff, Sample, to sell the property in question, without naming J. C. Hubinger as a probable purchaser, and that in pursuance of such employment, Sample went’to Hubinger, and got an offer of $6,000, which he submitted to said Charles W. Rand, and that after-wards the defendants conveyed the property to Hubinger for $6,500, then, if you so find, your verdict should be for the plaintiff for the customary compensation for raak-. ing such sales, as shown by the evidence.” This is objected to because it omits to direct that plaintiff’s efforts, whatever they were, must have been the procuring and efficient cause of the sale. In the fourth instruction that matter was fully covered, and no complaint is made of that instruction, except that it conflicts with the one we have just quoted. In view of the evidence and of the other instructions that are too long to be set forth, we are of opinion there was no substantial conflict. As applied to the evidence, if the jury found the hypothetical facts stated in this eighth instruction to be true, there was no escape from the conclusion that plaintiff found a purchaser, and was the procuring cause of the sale. In other instructions the jury was plainly told that if, when Rand spoke to Sample about the sale of the property, he discussed the fact that Hubinger was a prospective purchaser, and requested Sample to see Hubinger relative to a purchase of the property, then the verdict should be for defendant; and in another that if Rand only requested plaintiff to try and sell the property to Hubinger for $7,000, naming Hubinger as a probable purchaser, then the verdict should be for defendants. Viewed in the light of these instructions, there was no error in the one complained of. [619] Instruction 11, relating to the measure of recovery, directs the jury that if it found for plaintiff it should allow [620] him the customary charges for such services, to-wit, 5 percent. on the first thousand, and per cent, on the-balance of the purchase price. This is complained of,, because it is said the jury might have found that plaintiff was not entitled to the full amount, but was entitled to something for going to see TIubinger at defendant’s-request. There was no conflict in the evidence regarding the-usual commission for finding purchasers, and that the usual charge was as stated by the trial court. The case was tried on the theory that plaintiff was entitled to full compensation for finding a purchaser or nothing. Under the instructions,, there could have been no recovery on the theory now advanced by the defendants. Thereunder, if the plaintiff did not show himself entitled to the usual commission for finding-a purchaser, he was not entitled to anything. Hence there-was no error in the instruction given. II. Defendants contend that the verdict is not supported by the evidence. On the main issues there was conflict. In view of this conflict, it is not our province to interfere. 5 III. Lastly, it is said that during the trial plaintiff,, W. L. Sample, assigned his claim to Hugh W. Sample, and that he (plaintiff) is not entitled to recover. There is no> merit in this contention. Transfer of an interest in a claim, after suit brought, does not cause the action to abate. It may be prosecuted in the name of the-original party or the assignee may be substituted. The judgment seems to be in favor of the plaintiff. The trial court’s-attention does not seem to have been called to this matter,, but, if it had been, we are inclined to think that defendant» have no cause for complaint. No prejudicial error appears,, and the judgment is aeeirmed.