Coburn v. Gilbert

Hart, J., (after stating the facts). The sole reliance of the defendant for a reversal of the judgment is that the circuit court erred in admitting the testimony of T. B. Gilbert with reference to a division of profits upon a resale of the land. It appears that Gilbert bought the land1 from Coburn for $2,000. It was first agreed between them that the land should be resold, and that they should share equally in the profits. It is claimed by counsel for the defendant that the court erred in allowing this testimony to go to the jury. We do not-agree with counsel in this contention. The evidence referred to was only admitted by way of leading up to the contract which was made between the parties, with reference to the commissions to be received by the plaintiff for a resale of the land for the defendant. The testimony in question was not admitted for the purpose of establishing the claim of the plaintiff for commissions, but only as a narrative of what occurred between them leading up to the’contract they made. The plaintiff testified that the defendant finally persuaded him to take the agency for the sale of the ten-acre tract of land for a five per cent, commission. A written complaint was filed in the case, and the plaintiff only asks to recover the balance due him on a basis of a five per cent, commission for a sale of the ten-acre tract for the defendant. He procured a purchaser for this ten-acre tract for $2,500, and the defendant refused to sell. The plaintiff received $50 from the defendant, and this would leave a balance due him of $75. The jury returned a verdict for him in this amount, thus indicating that it believed the testimony of the plaintiff: to the exclusion of that of the defendant. No amount whatever was allowed the plaintiff for the sale of the five-acre tract. , i The pleadings and the evidence introduced, when considered in connection with the verdict of the jury, show that it was in no wise misled by the evidence in question. No prejudice could have resulted to the defendant from admitting the evidence, and it is well settled in this State that a judgment will only be reversed for an error prejudicial to the rights of the appealing party. It follows that the judgment will be affirmed.