
    John C. Laird, Respondent, v. Ella Ahl, Appellant.
    Fourth Department,
    November 15, 1910.
    Evidence — hearsay-*- statement of third person as to liability of defendant — facts not relevant to issue — new trial — newly-discovered evidence— credibility of witnesses.
    In a broker’s action for commissions for procuring a purchaser for lands, the sale of which was not consummated, it is error to allow the plaintiff to testify that an attorney at law who was present during the negotiations between the vendor and vendee advised the plaintifl to sue the vendor and assured him that he could recover.
    Where under the contract of sale the vendor was not bound to take a third mortgage as part of the purchase price unless she was satisfied with it, it is error to allow the plaintiff to show that the mortgage offered was good security although not salable because a third mortgage. So, too, it is error to allow him to prove the value of the lands covered by said mortgage.
    A new trial should be granted to the defendant in such action where newly-discovered evidence shows that the plaintiff and the vendee stated that the sale fell through because the vendee could not pay the agreed sum because of his failure to sell a mortgage.
    On a motion for a new trial on the grounds of newly-discovered evidence the credibility of the new witness should not be determined, but should be left to the jury on the new trial.
    Spring, J., dissented.
    Appeal by the defendant, Ella Ahl, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Wyoming on the 11th day of January, 1910, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 11th day of January, 191Q, denying, respectively, the defendant’s separate motions for a new trial made upon the minutes and upon the ground of newly-discovered evidence.
    
      Fredd H. Dunhan and Frank W. Brown, for the appellant.
    
      O. P. Stockwell, for the respondent.
   Williams, J.:

The judgmént and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to recover commissions as a broker in procuring a purchaser for defendant’s farm of 223 acres.

The selling price was $60 per acre, $13,380 in all, and the commission five per cent. The proposed purchaser was one Ward. A parol agreement was made between the parties. The controversy was over the terms of this agreement. Plaintiff claimed that Ward was to pay $2,000 down in cash, and transfer to defendant a third mortgage on another farm for $2,000 if she found on inquiry that it was good in further payment, and to take a purchase-money mortgage for the balance, $9,380, and if she did not take the $2,000 mortgage this additional amount should go into the purchase-money mortgage, making it $11,380, there being then only a payment down of $2,000. The defendant claimed that she never agreed to sell for a payment down of less than $4,000, of which $2,000 must be in cash, and $2,000 in the third mortgage, provided she found it to- be good or it would be taken by the holder of a prior mortgage at its face, or guaranteed by him or by another party known to her to be responsible. This disagreement as to the contract was the controverted question in the case. Plaintiff and Ward testified on the one side and defendant and her husband on the other. The court submitted the question to the jury. The sale was not perfected, the third mortgage not being satisfactory to defendant and not being guaranteed, and she refusing to accept it, and declining to sell unless $4,000 was paid down.

The court charged the jury that if the plaintiff’s version of the agreement to the sale of the farm was correct he could recover, but if the defendant’s version was correct he could not recover.

I am not satisfied that the finding of the jury was correct. They had undoubtedly a right to come to the conclusion they did, but it was rather an unreasonable claim that the defendant would sell a large farm for $13,380, and get only $2,000 down payment. We would not ordinarily expect a jury to determine the question that way in order to permit a recovery by a land broker against a woman, the wife of a country farmer. Very likely the case is not one where we should set aside the verdict as against the evidence, Under the rules applicable to such questions, but we may at least require the trial to be free from legal errors likely to produce such a verdict.

The parties went to Lawyer Prescott’s office to have the papers drawn to consummate the sale. Prescott heard the parties discuss the agreement and their respective claims with reference thereto. The plaintiff, while under examination as a witness, was allowed to testify that Lawyer Prescott said to plaintiff during the talk in his office, after hearing the parties talk their differences over, “ Sue this woman [defendant]. You can recover.” This was under defendant’s objection and exception.

There was also a motion made to strike it out after it was taken, and the motion was denied with exception.

Prescott was, we may assume, a lawyer of good standing and ability, and his judgment as to tlie real issue of fact between the parties was allowed to go before the jury, and with the decision of the court that it was competent and proper evidence for their consideration. It is not necessary to argue the question here -that the evidence was improper and should not have been received. We cannot say under the circumstances that it was not injurious to the defendant and did not change the minds of the jury and so induce them to render the verdict for the plaintiff when otherwise they would have found for thq defendant. There.is nothing in the claim that .defendant’s counsel had by the evidence he drew out on cross-examination so opened the door as to make this evidence proper, nor that by any subsequent examination of the defendant herself the injury was cured. This error stands out so flagrantly that it calls for a setting-aside of the verdict without any argument whatever. It was error also to permit evidence by the witness Cogs-well, the cashier, as to the third mortgage; that it was good security, but not salable because a third mortgage, and it was error to permit the witness Ward to testify to the value of the farm covered by the third mortgage. These matters had nothing to do with the real issue being tried. The defendant was not bound to take this mortgage unless she was satisfied with it, whether it was good security or not. The only question was whether, if she did not see fit to take the mortgage, she was bound to sell her farm upon receiving only $2,000 down and take a purchase-money mortgage for the whole balance.

I think, moreover, that the court should have granted the motion for a new trial upon the ground of newly-discovered evidence. The evidence related to statements made by the plaintiff and Ward (soon after the meeting in Prescott’s office) to the effect that the reason why the sale fell through was that Ward could not pay down the amount that he had agreed to pay, because .of his failure to cash the third mortgage. I need not go into détails. The case was a close one; this evidence went directly to the question.at issue, submitted to the jury, and we cannot say that it would not result upon the new trial in a verdict for the defendant.

The question of the credibility of the new witnesses should not be determined on this motion, but left to the jury on the new trial.

While granting or refusing the new trial was a matter largely of discretion with the trial court, I think that discretion was not wisely exercised in this instance.

For these various reasons there should a reversal here and a new trial.

All concurred, except Spring, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  