
    E. A. Strout Company, Appellant, v. Hoopes.
    
      Principal and agent — Real estate brokers — Commissions—Conflicting testimony — Case for jury.
    
    In an action by real estate brokers to recover commissions for the sale of real estate, the case is for the jury, and a verdict and judgment for defendant will be sustained where the plaintiffs claim that the sale was made by them to the purchaser’s daughter, is contradicted by the witnesses for the defendant, whose testimony tended strongly to show that the purchaser had no connection whatever with the broker, or relations with him, that he had an independent knowledge of the property, that he dealt with the defendant after the latter had withdrawn the property from the hands of the plaintiffs, and that the purchaser had title taken in his daughter’s name, but that none of her money had entered into the purchase.
    Argued Nov. 20, 1911.
    Appeal, No. 271, Oct. T., 1910, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1909, No. 1, on verdict for defendant in case of E. A. Strout Company v. Warwick C. Hoopes.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover real estate broker’s commissions. Before Hemphill, P. J.
    The court charged in part as follows:
    [If you credit the testimony produced by the defendant here, which is, mainly, that of Mr. Jeffries, then your verdict should be for the defendant;] [3] because his testimony, as I recall it — and you will be governed by your own recollection and not mine — was, in effect, that, without any inducement or any arrangement or any effort to assist the defendant here to avoid the payment of commissions, that he, of his own volition, sought him as a purchaser of this property; did so, if I recall it right, in November or perhaps, he says, the early part of December; that they consummated their agreement on the second day of January. He says that agreement was in writing and signed by the parties. The defendant here thought it was not, and had no recollection of seeing the paper, but did recall receiving the $250 hand money. Mr. Jeffries says that he purchased that property, but that, for family or private reasons of their own having no connection with the alleged sale by Mr. Howell, he directed the title to be transferred to his daughter, Mrs. Taylor. [I say, if that be the true situation of the case, then your verdict should be simply for the defendant, because Mr. Howell, the agent of the plaintiff company here, in no manner figured in that transaction.] [4] There are, however, side lights bearing on that which you will consider and to which your attention has been called beforehand — the inconsistency of the testimony of Mr. Hoopes with that of Mr. Jeffries; Mr. Hoopes, in the first instance, testifying to you exactly, or virtually, the same as Mr. Jeffries had, that these negotiations went on some time in December and culminated on the second of January when the hand money was paid, and that he knew nothing about who was to take the title, other than Mr. Jeffries, until some time in March, when he was directed to make the deed to Mrs. Taylor. Now, Mr. Jeffries had a perfect right to purchase this property and give it to whoever he pleased and so have the title made. But Mr. Hoopes said, also, shortly after January 13, when discussing the sale in a letter to Mr. Howell, that, “Mrs. Taylor was not out to see it till November 20, and did not consummate the sale till December 28,1908, over a month after I took it out of your hands.” I say, that is one of the arguments brought to your attention by counsel to satisfy you that Mr. Jeffries was not the real purchaser. Because I take the position to be here, that Mrs. Taylor called in regard to this property — although she resided near by — to look at that property and other properties. She said she asked some questions, perhaps, about it, and left; that Mr. Howell called on her the first time with a view to having her look it over. She said to him, “I am familiar with the property, and cannot go now because my husband is away,” but arranged to go some time, and did go, and saw the property, and that property which she looked at at that time, to which her attention was called by these parties, she ultimately became the owner of. [Now the plaintiff wants you to say, by your verdict, that the Strout Company, of which Mr. Howell was the-agent, was the party that induced this sale, that brought it about, brought it to the attention of the real purchaser; in other words, that Mr. Jeffries was merely a blind; that after Mrs. Taylor became satisfied and wanted the property, she said so to her father, and her father entered into negotiations in order, evidently, as they would have you believe, to save the expense of paying these commissions, and she becoming the owner of this property at the expense, or at the loss, of the plaintiff in this case.] [5] I say, if all the testimony taken together satisfies you that such was the case, then the plaintiff is entitled to his commissions and should receive them. About those, there is no question; they are fixed by the written agreement and are not in dispute here. [But, as you will see, the material question here is, who, under all the evidence ■ — and you have heard it freely commented upon by both sides, and I shall not go over it — who, in your judgment, under all the evidence, was the bona fide purchaser of this property? If it was Mr. Jeffries, then they are entitled to no commissions whatever.] [6] If it was Mrs. Taylor with whom they had the negotiations and who became the final owner of this property — I say if she was the real purchaser, the bona fide purchaser, then they should have their commissions, which would be $550 with interest from April 1, 1909. So, as you will see, gentlemen, the case is, in a nutshell, not free from some trouble in its determination, because some of the testimony seemed almost irreconcilable. It is your duty, however, if you can, to reconcile all the testimony. If you cannot, then you must determine wherein lies the truth, or, perhaps I should not say, the truth, because, I do not know that there is any intent there to be untruthful or attempt to prevaricate, but, on whose recollections you can rely. [If you determine the story told by Mr. Jeffries is the correct one as to this purchase; if there was no intervention or no knowledge by the plaintiff, at all, in this transaction, and that he and this man Hoopes negotiated solely by themselves and without any attempt to defraud the plaintiff, your verdict should be simply for the defendant.] [7]
    Verdict and judgment for defendant. Plaintiff appealed.
    
      Errors assigned were (3-7) above instructions, quoting them.
    
      George B. Johnson, for appellant.
    
      C. Wesley Talbot, for appellee.
    October 14, 1912:
   Opinion by

Morrison, J.,

This was an action of assumpsit brought to recover a real estate broker’s commission claimed on the sale of a farm by the defendant which was deeded to Mrs. Carrie H. Taylor, the daughter of Hannum Jeffries. The questions in dispute were almost entirely of fact and we think they were fairly submitted to the jury.

The learned counsel for the appellant contends that there was absolutely no evidence to support the verdict for the defendant. We cannot agree with this contention. The appellant bases its right to recover on the theory that it was a licensed real estate broker and that it had the defendant’s property in its hands for sale and that it made a sale thereof to Mrs. Carrie H. Taylor and thereby earned ten per cent commission on $5,500. In opposition to this theory the appellee contends that he had withdrawn the property from the hands of the appellant before he sold it, and that the sale was actually made to Hannum Jeffries and not to his daughter, Mrs. Taylor. The undisputed evidence clearly shows that Hannum Jeffries had been familiar with the property for many years, and his testimony is to the effect that he purchased it from the appellee without any aid, assistance or information derived from the appellant, and it is not questioned that Mr. Jeffries paid of his own money $2,750 upon the farm and that he then caused the deed to be made to his daughter, Mrs. Carrie H. Taylor, and she and her husband executed and delivered a mortgage to the appellee for $2,750, the balance of the purchase money.

The learned counsel for the appellant contends that Mrs. Taylor was, by the defendant’s admission, the actual purchaser of the farm and that her father was only a pretended purchaser. We do not think the evidence conclusively leads to this conclusion. There is no evidence that Mrs. Taylor invested a dollar in the purchase of this farm, but it is conceded that her father made the bargain with the appellee and paid, of his own money, $2,750 of the purchase price.

Of course there was ground for argument to the jury, upon all of the evidence, that Mrs. Taylor really purchased the property, but the principal force of this argument rests on the fact that the deed was made to her and that she had at some time prior to the sale to her father visited the appellant’s office and inquired about the property. It is very probable that the learned counsel for appellant made a vigorous effort to convince the jury that the sale was made by the appellee to Mrs. Taylor, but the jury evidently refused to so find and found that the farm was sold to Hannum Jeffries. In our opinion the evidence of Mr. Jeffries and other witnesses sustains this finding by the jury, and this evidence was fairly submitted, to the jury, by the court.

The learned counsel complains of the court for saying to the jury: “If you credit the testimony produced by the defendant here, which is, mainly, that of Mr. Jeffries, then your verdict should be for the defendant.” We think the learned counsel must concede that if the facts had been agreed upon as testified to by Hannum Jeffries that ‘a question would thus have been presented to the court calling for legal instructions as to whether or not the appellant was entitled to recover commissions from the appellee for the sale of the farm to Hannum Jeffries. In our opinion, in that case, the court would have been warranted in directing a verdict for the defendant. Now, in substance, that was what was done at the trial of this case. The court was of the opinion that if the facts were as testified to by Hannum Jeffries, the plaintiff could not recover and we agree with this conclusion of the court below. If Mr. Jeffries had been familiar with the farm for many years and believed that it was not then in the hands of the appellant for sale, and Mr. Jeffries received no aid, information or assistance from the appellant, but went to the appellee and as an ordinary business transaction purchased the farm, we are unable to see how the plaintiff earned or is entitled to recover any commission on that sale.

The learned counsel for appellee in his printed argument says: "The appellant here complains that there was a manifest abuse of discretion by the lower court in dismissing its rule for a new trial in this case, and this represents the single question for the consideration of this court.” A careful examination of the assignments of error and the argument of appellant’s counsel does not disclose any ground for the above assertion. While it is true that appellant’s counsel contends that there is absolutely no evidence to support the verdict for the defendant, yet he has no assignment of error, based on an exception, asking for a reversal of the judgment because of an abuse of discretion by the court below in refusing a new trial.

Upon the whole record, the seven judges who heard the argument of this case reached the conclusion that it was properly tried and that the judgment should be sustained.

The assignments of error are all dismissed and the judgment is affirmed.  