
    Betty E. Gifford vs. Herbert L. York
    Kennebec.
    Opinion, July 18, 1950.
   Per curiam.

This is an action of contract to recover a real estate commission. The plaintiff alleged and offered evidence to prove that she was a duly licensed real estate broker, that the defendant listed with her certain real estate to sell and promised to pay her as a commission all that she could get for it over $3,000, that the plaintiff found a buyer for it for $3,500 and that it was sold for that price and a warranty deed was given, and that the defendant paid the plaintiff $100 on account of the price. The plea was the general issue and the case was tried before a jury who found for the plaintiff for the balance due with interest. The case is before us on a general motion for a new trial and on certain exceptions to the exclusion of evidence.

Charles A. Peirce, for plaintiff.

Ames & Ames, for defendant.

The defendant takes nothing by his motion. The question was one of fact as to the making of the contract for the commission and there is ample evidence to sustain the finding on that point. There seems to be no question about the sale having been made for a price of $3,500.

The court excluded evidence offered by the defendant tending to show that a mortgage note given in part payment of the purchase price was not paid when it was due. The first, two exceptions are based on the exclusion of such evidence. The evidence was properly excluded. What happened subsequent to the making of the contract between the plaintiff and the defendant could not alter the rights of the plaintiff in the absence of a new contract between her and the defendant. And there was no such new contract. The third exception is to the exclusion of a receipt given by one J. E. Reynolds purporting to cover a commission to said Reynolds for the sale of the same real estate. If the payment to Reynolds was otherwise relevant, such receipt was hearsay and inadmissible, particularly as it appears of record that Reynolds was in the court room and not called as a witness.

Motion overruled.

Exceptions overruled.

Sitting: Murchie, C. J., Thaxter, Fellows, Merrill, Nulty, Williamson, JJ.  