
    8137
    BRIGGS v. DONALDSON.
    1. Allegations and Proof—Magistrate Court.—-Variance between proof and allegations in magistrate court should be disregarded unless the opposite party has 'been prejudiced thereby, which does not appear here.
    3. Principal and Agent—Brokers.—Where brokers undertake the sale of real property for -another, make a contract of sale and receive a fart of the purchase money -and the purchaser defaults, but does not claim the money, the amount so paid is due the principal.
    Before Gage, J., Greenville, Jume, 1911.
    -Affirmed.
    Action1 by- W. A. Briggs and J. B. Jennings against Donaldson) & Hoke, befare E. Inman, magistrate. The Circuit judgment oni 'appeal from magistrate is:
    
      “The defendants appeal, on fourteen, ground's, from1 the judgment of a magistrate.
    “The judgment was for one hundred' ($100) dollars in favor of the plaintiffs ’and) against defendants.
    “The plaintiffs were owners of real estate in the city of Greenville, and the defendants were agente, middlemen or brokers for the sale of real estate.
    “The defendants undertook to sell the plaintiffs'5 valuable real estate to one Sharpe for twenlty-onie thousand ($21,000) dollars, and)' Sharpe paid to defendants one hundred ($100') dollars.
    “The sale fell through and this action is to recover’ from the defendants'the one hundred ($100) dollars paid to them' by Sharpe. Sharpe makes no claim to the money.
    “The complaint alleges that ‘Sharpe deposited with the said plaintiffs’ agents his check for the sum) of one hundred ($100') dollars, to be forfeited to the plaintiffs in case the said Sharpe should fail to pay to plaintiffs? said agents1 the sum of twenty-one thousand nine hundred ($21,900) dollars, the balance of said purchase money, etc.’
    “There is no proof to 'sustain 'that¡allegation; Sharpe, denied it, and the plaintiffs’ testimony .{tending to prove it was incompetent, for it was opinion evidence and hearsay evidence, in a case where 'such testimony is not allowable.
    “The complaint, however, alleges that there was' a contract betwixt the plaintiffs, acting through the defendants, and one Sharpe; whereby plaintiffs1 agreed to sell and .S'harpe agreed to buy a certain house and lot for twenty-twoi thousand ($22,000) dollars.
    “The testimony' sustains the allegation). .The ’contract is in- writing; it is plain and full; it is signed' by the party to be charged, through their confessed agent; the complaint admits the agency; the defendants declared tibie 'agency; and the constitution of the agency is not required by any 'Statute to be in writing.
    
      “The 'contract is tlie receipt executed, by the .defendants to Sharpe when he paid down the one hundred ($100) dollars, ‘in part payment for'one lot and warehouse.’
    “On1 this contract the plaintiffs! might have sued Sharpe for specific performance of his contract, or for damages for a breach of his contract.
    “But they did neither; they simply acquiesced in the br-edch.
    “And' on the same contract Sharpe might have brought similar actions, for rights are reciprocal.
    “What would have been the rights and obligations! of the plaintiffs had Sharpe paid into their own hands as 2' much as five thousand ($5,000) dollars as part payment and then have defaulted? • ■
    “In that case the plaintiffs may have sued for a specific performance of the contract,-or'for a breach of the contract; that would 'have been their right.
    “But if they elected not to do either, might they quietly keep' the five thousand ($5,000) dollars so received and the land as well, and institute no action? Manifestly so, if - Sharpe consented to the conduct.
    “It is 'true that in the case supposed, Sharpe would have had the right 'to demand the sale of the land, and if it brought a surplus over the agreed price hie would be entitled to have that.
    “But Sharpe might he content to- take no action, as he has in the case at bar.
    “The case is not altered that the sum actually paid on die • purchase price was one hundred ($100) dollars instead of five thousand ($5,000) dollars.
    “It is 'altogether accidental that the actual payment was made 'to the defendants and not to the plaintiffs-.
    “In the -eye of the law the payment was' made to1 the plaintiffs' and not to 'the defendants., for payment to the agent is payment to the principal.
    
      “Because Sharpe has not busied himself to prosecute his rights is no reason for the defendants to ignore their duty.
    “They have established no legal right to keep the money although the plaintiffs may not be entitled to have it on the grounds they staked out.
    “I revert now to the exceptions-: I think the first four must be allowed, yet their 'allowance does not affect the result. I 'think the sixth and those following i't must be overruled. The fifth exception is sound; the plaintiffs did not prove the -case alleged, so far as the -claim was made that the one hundred ($100) dollars was paid as a 'bonus or forfeit. But the testimony, competent -and unobject-ed, to, -does establish another case, to wit: that the one 'hundred ($100') "dollars was paid by Sharpe to- defendants as agents for the plaintiffs, and ‘as part payment for one lot and warehouse.’
    “It is'therefore ordered that the judgment of the magistrate be 'affirmed.”
    Defendants appeal.
    
      Messrs. McCullough, Martin- & Blythe, for appellants,
    cite: If defendants were brokers they are not liable: 84 S. C. 197; 86 S. C. 76; 19 Cyc. 196; L. R. 19 Eq. 108; 92 Va. 581; 18 Barb. 60; 89 N. W. 1086; 42 At. R., 81; 30 Id. 1073; 116 A. S. R. 342. If .the contract ivas accepted by plaintiff, the broker is entitle dio his commissions: 23 Ency. 917; 19 Cyc. 244, 259; 21 A. R. 192; 20 N. B. 174; 89 N. W. 652; 100 N. W. 327.
    
      Mr. Adam C. Welborn, contra.
    March 16, 1912.
   The opinion of the Court was delivered by

Mr. Justice Woods.

This appeal is from a judgment of the Circuit Court 'affirming the judgment of the magistrate. The decree of the Circuit Court demonstrates that the case has been rightly decided, and- that there is no substantial merit in the exceptions. The technical points can not avail. Section 88 of the Code of Procedure provides that in magistrates’ courts “A variance between the proof on the trial and the allegations in the pleadings shall be disregarded, as immaterial, unless the Court shall be satisfied that the adverse party has been misled to his prejudice thereby.” The record shows that the defendant was not misled to his prejudice. Section 368 requires that technical errors and defects be disregarded.

The judgment of 'this -Court is- iftat the judgment of the Circuit Court be affirmed for the reasons therein stated.

Only Mr. Chiee Justice Gary and Mr. Justice Hydrick participate in this opinion and concur.  