Madler v. Pozorski

KeewiN, J. 1. It is claimed by counsel for appellant that the court erred in refusing to admit testimony as to plaintiff’s attempt to get hold of defendant’s customer. The contract set up in the complaint was that the defendant should have the right to offer the property for sale and make a sale of the same, and that the profits should be equally divided, but it does not appear that the exclusive agency was transferred to defendant. The evidence offered tended to show that plaintiff was endeavoring to make a sale, and this was not inconsistent with his contract with defendant. Therefore exclusion of. such evidence was not reversible error. It appears that evidence was offered by defendant for the purpose of impeaching the testimony of plaintiff and one Kern, who testified on cross-examination to the effect that they did not solicit defendant’s customer. The testimony as to whether or not they did so solicit being immaterial, evidence to impeach it was likewise immaterial, and the exclusion of it not prejudicial error. 2. Under the second and fourth assignments of error, to the effect that the court erred in denying defendant’s motions for the direction of a verdict, to change the verdict, and for judgment, and for a new trial, and in granting plaintiff’s motion for judgment, it is contended that plaintiff could not act as the agent of, and receive pay from, Thielman and defendant; but it does not appear that plaintiff’s relations with Thielman were in any way inconsistent with his contract with defendant. Plaintiff was endeavoring to obtain a bid for the property for Thielman, and agreed with defendant that if he [480] should obtain an acceptable offer plaintiff would divide profits-with him on the sale. There is no evidence whatever of any attempt on the part of plaintiff to taire advantage of his principal, or conceal from him any material fact concerning the sale. On the contrary, it appears that he was at all times acting in the interest of his principal in the proposed sale. "Whether defendant was guilty of unfair dealing with Thiel-man can in no manner affect plaintiff, if he was not a party to it. It not appearing that plaintiff was guilty of any fraud, deception, or unfair dealing in his relations with Thielman, it is unnecessary to consider the effect of such conduct upon the plaintiff’s right to recover. 3. Appellant further assigns as error that the question of fraud and deception on the part of the agents against their principal was ignored. From the view we have taken of the case it does not appear to us that there was any question of fraud to submit to the jury. By the Court. — The judgment of the court below is affirmed.