
    Walter C. Mason et al., Resp’ts, v. Freeman A. Hinds, App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed August 3, 1892.)
    
    1. Partnership—Evidence.
    In an action brought by alleged co-partners it is competent to prove the fact of partnership by one of the partners.
    
      2. Trial—Examination of witness.
    It is not error to rule out a question after counse. _as been permitted to ask six or seven times a question practically identical therewith.
    3. Brokers—Representations.
    In an action by a broker for commissions on an exchange of lands it is not error to exclude a question as to whether the broker represented that there were no taxes due on the lapd which defendant was to take, where it appears that defendant had the tax bills before him and an opportunity to examine them and ascertain the facts.
    4. Same.
    If defendant entered into a contract with the person produced by plaintiff, it is immaterial whether he was able to pay the taxes on the land he was to take so far as plaintiff’s right to commissions is concerned.
    5. Same.
    Nor is it material that some other person paid the consideration for the land, so long as the legal title was in the person so produced by plaintiff.
    Appeal from judgment of the municipal court of. Buffalo, in favor of plaintiffs.
    
      Andrews & Hill, for resp’ts; J. W. Russell, for app’lt.
   Titus, Ch. J.

—This is an appeal from the municipal court of Buffalo, from a judgment rendered in favor of the plaintiff for $146.66 damages, and $19.30 costs. The action was brought by the plaintiff to recover commissions which he claims to have earned in procuring a purchaser for the defendant’s farm of 105 acres, situated in the town of Cameron, in the county of Steuben. The plaintiff is a real estate broker, engaged in procuring parties to buy and sell lands and charging a commission for his services.

It is claimed by the plantiff, and not disputed by the defendant, that they did enter into an agreement by which, if the plaintiff procured a purchaser for the farm, the defendant would pay him for his services. It appears from the evidence that the plaintiff was to receive $150 if he procured a purchaser for the defendant’s farm. The defendant claims, however, that he was to pay him only $100. This question was tried before the court below, and on disputed evidence the court determined that the version of the contract as alleged by the plaintiff was the true one, and allowed him a judgment for that sum. We think the evidence fully warranted the court in the conclusion which it reached, and are not disposed to disturb its finding upon that ground.

It appears that Charles Boesch was the owner of three certain pieces of property situated in Buffalo, and that through the negotiation of the plaintiff he entered into a contract with the defendant to exchange this property for the defendant's farm, Boesch agreeing to take the farm in exchange for the lots in Buffalo, and give back a mortgage for $2,700, and the defendant was to pay Boesch $400 in cash, leaving the actual difference between the two properties $2,300. A written contract was entered into and signed on the 19th day of December, 1891. The defendant after-wards refused to fulfil his part of the contract, and now claims that he should not be held liable for the commissions, because the sale did not actually take place.

On the trial the defendant sought to show that the plaintiff made false representations as to the amount of taxes due on the pieces of property owned by Boesch. We do not think he satisfactorily established any fraud, and that the amount of taxes as stated by Mr. Gferst, who was the agent of Boesch, to the plaintiff, was true.

It is claimed, however, by the defendant, that he should not pay the plaintiff his commissions because the title to the property, while it was in Charles Boesch, was actually owned by LouisBoesch, and that Louis Boesch had creditors who might have a lien or claim against the property in the hands of Charles Boesch, and that he cannot be made to perform his contract with Boesch. We do not think his objection is a valid one. So far as it appears, the title to the property in Boesch was absolute and perfect. Mo-creditor had made claim to it, or sought to charge it with any of the debts of Louis Boesch, and there could be no legal objection to Charles Boesch conveying the title to a bona fide purchaser which would be perfect and free from the claims of the creditors-of Louis Boesch.

It is claimed, however, by the counsel for the defendant, that-this contract is illegal upon its face, and cannot be enforced. He does not point out specifically the particular reasons for such claim, and it is not apparent from the contract, or from the return itself, wherein the contract is open to that objection.

During the trial, the defendant made numerous objections to the admission of evidence, and claims that error was committed by the court in overruling them.

The first objection pointed out is to.the proof made by one of.' the plaintiffs, as a witness, that he and Mason were partners in business. We do not think the objection is well taken. Since parties are allowed to testify in their own behalf, we can see no-objection to proving the fact of a partnership by one of the' co-partners, although he is a party to the action. The authorities cited by the defendant’s counsel in support of his proposition have application to cases where it is sought to establish a partnership in actions brought by third parties against the copartners. It-is always competent to show the acts of the copartners in their manner of dealing between themselves, and with third, parties, as-well as their declarations, to establish the fact of a partnership. But it does not follow that in an action by the.copartners they are-not permitted to testify to the fact themselves.

The next ruling which the defendant’s counsel claims is erroneous was in the cross-examination of the plaintiff Banks. He was asked, “ Q. Was anything said in regard if the trade didn’t go through, if the property didn’t actually exchange hands?” This was objected to, and the evidence excluded. The ground of the objection is not stated, but it is manifest on an examination of his cross-examination that the court exercised its discretion properly. It appears that the defendant’s counsel had repeatedly asked substantially the same question, and that it had been as frequently answered by the witness. The question immediately preceding this one was • “ Q- I ask the witness if at any time you stated to the plaintiff Banks you wouldn’t pay this commission-under any circumstances, unless the trade was carried through and this property actually exchanged V The witness answered, “ I told him that if the trade went through I would give him one hundred dollars.” On page 30 this question was asked of the witness : “ Q. Was anything said as to whether it should be paid at all or not if the trade didn’t go. through ?” The witness answered : “ That was distinctly understood, if the trade was made.” And again, on the same page, this question was asked: “ Q. Was anything said between you and Banks as to whether this money should or should not be paid unless the trade actually went through ?” and the witness answered, “ I told Banks that I would agree to give him one hundred dollars in cash if the trade was made.” On page 31 the same witness was asked: “ Q. Tell whether or not it was positively stated by you to Banks that you wouldn’t pay the commissions unless the trade actually went through. You' may tell what that conversation was,” and the witness answered: “If the trade was made I was to give him one hundred dollars.” Again, on the same page. “Q. What was said?” “A. I told him if the trade went through I would give him one hundred dollars.” On page 32 this question was asked of the same witness: Q. I now ask if you remember anything was being said in that conversation about .the manner of your paying this commission. Anything further than you have stated ? ” and the witness answered: “ It was said from me to him if the trade was made I was to give him one hundred dollars.” Again, on page 33: “Q. Was anything further said about this payment of one hundred dollars than as you have stated?” “A. I told him if the trade was made I would give him one hundred dollars.” On the same page the following question was asked: “ Q. Do you remember anything further (upon the subject .of paying this one hundred dollars commission) ?” A. I don’t know anything further in regard to paying commissions that I know of.” It would seem that after the counsel has been permitted to ask six or seven times a question which is practically identical with the one which was ruled out, and as frequently answered, that he can have no ground for complaining that he was not permitted to examine the witness upon this point. We think he exhausted his full right, and the court below was liberal in allowing him to repeat the question so many times.

The defendant claims he should have been permitted to ask the following question:

“ Q. You may state whether or not shortly after the signing of this contract you saw the plaintiff Banks in my office on this subject, and if you did, whether or not you said to him there that he had stated to you before you signed this contract that there was nothing due upon the taxes or interest; that he knew at the time that he so stated to you that the taxes were due, and that the interest on the mortgage or' some part of the mortgages was due? ”

If any error was committed by the ruling of the court in ruling out the question, it was cured by the witness subsequently answering the same question. But we do not think that error was committed in any view. The tax bills were before the defendant at the time negotiations were pending for the exchange of the lands, and he examined or had an opportunity to examine them and determine for himself whether or not the taxes were due. This was in December, 1891. The taxes to which the question related were the city taxes of 1890 and 1891, which appeared from the tax bills themselves to have been long past due, and as to the local taxes the defendant was bound to take notice of the law in relation -to the time when such taxes fell due. We do not think any error was committed by the court.

The defendant was asked by his counsel whether he was in condition at the' time to pay those taxes besides the $400 that the contract called for. We think this was clearly incompetent. The question as to his condition to pay taxes was entirely immaterial. If he had entered into the contract it was a matter of no concern either to Boesch or the plaintiff whether he was in condition to pay the amount of the taxes or not.

Hor do we think that any error was committed by the court in ruling out the offer of the defendant to show that the title to the property was in Charles Boesch, and that Louis Boesch had paid the consideration. We think it is immaterial, and does not constitute a defense to the plaintiff’s claim for commissions.

On an examination of the return we do not see that any error was committed which calls upon this court to interfere with the judgment

Section 3063 of the Code of Civil Procedure provides that in appeals of this character “ the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits,” and it is difficult to see how any of the questions which were ruled out áre important or material as bearing upon the merits of the case.

The judgment should therefore be affirmed, with costs.

Hatch and White, JJ., concur.  