
    R. D. Hull et al., Copartners, etc., Appellees, v. R. G. Tonkin, Appellant.
    
    No. 18,133.
    SYLLABUS BY THE COURT.
    Real-estate Agent — Commissions—Evidence. The evidence in an action for a real-estate agent’s commission held sufficient to authorize a recovery.
    Appeal from Dickinson district court.
    Opinion filed May 10, 1913.
    Affirmed.
    
      G. W. Hurd, and Arthur Hurd, both of Abilene, for the appellant.
    
      C. E. Rugh, of Abilene, for tlie appellees.
   The opinion of the court was delivered by

Mason, J.:

R. D. Hull and Samuel Gutsch, as successors of Hull Brothers, sued- R. G. Tonkin for a real-estate broker’s commission and recovered a judgment, from which he appeals.

His principal contention is that a demurrer to the evidence should have been sustained. He owned a section of land which he listed with Hull Brothers, telling them a commission would9 he paid to the agent who made a contract of sale with the purchaser. The firm held some communication with persons interested in the purchase, but closed no contract with them. Through another agent a contract was made for the sale of the land to a different buyer, who later assigned the contract to persons with whom Hull Brothers had been in negotiation. While there was direct testimony that the Hulls did not effect the sale, we think, under all the evidence, there was room for the inference that it was really the result of their efforts, and that a circuitous method of dealing was adopted for the purpose of defeating their claim to a commission.

There was evidence tending to show these facts, among others: The Hulls endeavored to sell the land to Henry Jacobson, who considered buying it for his son, Henry P. Jacobson, in conjunction with- Joseph F. Hoffman and Samuel Hoffman. They talked up the deal with the several prospective buyers, and as a result Jacobson, senior, went to see Tonkin, the defendant, about it, being accompanied by one Chris Kohrs. The defendant told Jacobson that he was the'Bull Brothers’ customer and would have to buy through them. Kohrs heard this conversation, and offered to buy the land himself. He was referred to a Mr. Steelsmith, a real-estate agent, who made his headquarters in the defendant’s office. Kohrs asked Steelsmith if he would divide his commission with him if he would contract for the land and run the risk of selling it. Steelsmith returned an affirmative answer, and a contract was executed for the purchase of the land by Kohrs. Within two months Kohrs assigned. the contract to Jacobson, junior, and Samuel Hoffman, to whom deeds were made by the defendant. Afterwards Samuel Hoffman conveyed a portion of his share to Joseph F. Hoffman. Kohrs testified that he paid.$1000 at the time of making the contract, and got this back with his commission when the deeds were made. He said he did not buy the land with the intention of keeping it; that before making the contract he called up Joseph Hoffman on the telephone and talked with him; that Jacobson, senior, told him his boy would probably take part of the land; that at the time of entering into the contract he thought he could sell it to the Hoffmans and Jacobson, but had no agreement with them. It was a fair question for the jury whether the purported sale to Kohrs was in good faith or merely colorable. They were authorized to base their verdict upon circumstantial as well as upon direct evidence. They obviously concluded that the deal between Tonkin and Kohrs, the one between Kohrs on the one hand and Jacobson and Joseph Hoffman on the other, and the one between Joseph Hoffman and Samuel Hoffman, were but parts of a single transaction. It can not be said that this conclusion was unfounded.

Complaint is made of the overruling of an objection to a question asked of a witness for plaintiff — “When did you first learn that the Hoffmans and Jacobsons had taken this land?” The assumption that the Hoff-mans and Jacobsons had taken the land is said to have been unwarranted. The form of the question can not have been seriously prejudicial.

The court refused to submit to.the jury two special questions: “Did Hull Brothers or Tonkin sell the land in controversy or any part of it to Joseph F. Hoffman?” and the same question with respect to Henry P. Jacobson. Answers to these questions would not have aided in settling- the controversy between the plaintiffs and the defendant. The jury, in response to a question that was submitted, answered that Hull Brothers secured these persons as purchasers for the land. This answer disposed of the vital matter at issue.

The judgment is affirmed.  