
    CLARK v. MORRIS.
    
    Brokers; Instructions to Jury.
    1. Where a broker is employed to sell property on commission, and he brings the owner, or the agency through which he is employed, and the-prospective purchaser together, and a sale results, though it be accomplished by the owner or such agency without any further assistance by the broker, the broker is entitled to his full commission, the-same as if he had conducted all the details of the sale.
    2. Where a broker employed to solicit subscriptions to the stock of a mining corporation upon an agreement that he should receive a commission on all subscriptions obtained by him, or through his influence, was told by his principal not to see a party with whom he was negotiating until further notice, and he obeyed, he is entitled to his. commissions on a subscription subsequently obtained by the principal from such party.
    3. The instructions of the trial court to the jury should apply the law to-the facts as disclosed in the case in which they are given. An instruction correctly stating the law in one case, if given in another ease, though similar, might be erroneous.
    4. In an action by a broker for his commissions for obtaining subscriptions. to stock in a mining company under a contract entitling him to commissions on subscriptions obtained by him or through his influence, where it appears that after obtaining a subscription from one party, for which he was paid his commission, and obtaining his promise to-endeavor to interest another party in the stock, he was prevented by his principal from continuing his negotiations to obtain an additional subscription from the first party and a subscription from the other, and that such subscriptions were subsequently made, it is not error for the trial court to instruct the jury that they are entitled to infer that the broker was the procuring cause of the new subscriptions, and also to infer that if the stock certificates were actually delivered to the subscribers they were paid for by them, in the absence of any evidence to the contrary.
    
      5. If a broker employed to obtain subscriptions to the stock in a mining company at a certain price, brings his principal and a prospective subscriber together, and the principal, without notice to the broker, sells the stock for a less price, the broker is entitled to his commission on the price for which he was employed to sell. If the sale is for a greater price, the principal has no cause to complain, in a suit by the broker for his commission on the contract price.
    No. 1789.
    Submitted February 7, 1908.
    Decided March 10, 1908.
    Hearing on an appeal by the defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action of assumpsit.
    
      Affirmed.
    
    The Court in the opinion stated the facts as follows:
    This is an action at law instituted in the supreme court of the District of Columbia by appellee, Henry P. Morris, against Edwin 0. Clark and Eugene Davis, trading as Clark & Company, and the Mexican Mining & Exploration Company, a corporation. The declaration is in common counts, and the demand is for services rendered by appellee in securing subscriptions to the capital stock of the Mexican Mining & Exploration Company. The action is based upon an agreement in the form of a letter addressed to the plaintiff in February, 1903, sent by Clark <& Company, as follows: “We agree to employ you to solicit subscriptions to the stock of the Mexican Mining & Exploration Company, and will pay you a commission of 20 per cent on all subscriptions obtained by you, or through your influence.” Appellee admitted that he was only to be paid .commissions upon such subscriptions as were paid.
    The facts appearing in the record are to the effect that appellee agreed to the terms of said employment, and had confer•enees from time to time with appellant Davis, of Clark & Company, and with the officers and directors of the mining company. During his employment he procured subscriptions to said stock, at $2.50 per share, from one Cowen, of 5,000 shares, amounting to $12,500, together with some other smaller subscriptions. When Cowen subscribed, he stated to appellee that he would take 5,000 shares, and would endeavor to interest some of his friends in the stock, — among others, one Garrett. The appellee informed appellant Davis of his conversation with Cowen, and stated that he would attempt to secure an additional subscription from him, and also see him regarding the subscription to Garrett. Appellee, under the direction of Davis, continued his efforts with Cowen, and together they called upon Davis at the office of the mining company, in Washington. Davis directed appellee to return to Baltimore on the same train with Cowen, and talk further with him about the purchase of stock. Appellee returned to Baltimore, as directed, with Cowen, discussing with him the matter of an additional subscription, and also the best method of procuring the Garrett subscription. Appellee was preparing to go to see Garrett when Davis instructed him not to go until he should notify him. Later, appellee spoke to Davis regarding Garrett’s coming into the company, and Davis replied, “Not to 3vorry, that Mr. Cowen would see him at the eariest time convenient.” Appellee called upon Cowen to urge him to see Garrett, to which Cowen replied, “I will see him in a day or so.” Appellee was urging Davis almost daily to let him see Garrett, and, if possible, procure his subscription, but Davis still requested him to wait.
    Later, in the spring or summer of 1903, Cowen, who had become a director in the defendant company, and Garrett, visited the mines of the company, in Mexico. Considerable correspondence between appellee and Clark & Company and Davis appears in the record, showing that up to the time that Cowen and Garrett returned from Mexico, in the summer of 1903, Clark & Company and Davis were not only urging appellee to dispose of the stock of the company, but had induced appellee himself to invest in the stock of the company to the amount of $2,500. It further appears that, on the return of Cowen and Garrett from. Mexico, appellee inquired of Davis if they had subscribed, and was told that they had not. Appellee testified, which is not contradicted, that Davis-avoided meeting him from that time on, although before that time they were in almost daily communication; that shortly after the return of Garrett and Cowen from Mexico he learned that Garrett had subscribed for $12,500-worth of stock, and that Cowen had increased his holdings by-taking $6,500 additional stock. It is for the recovery of the commission on the sale of this stock that this suit was brought in the lower court.
    The record evidence of sales of stock to Cowen and Garrett, are disclosed by two receipts, which are as follows:
    June 10th, 1903.
    Deceived from Clark & Company Interim Certificate No. 151 of Mexican Mining and Exploration Company for 10,000 shares. *
    Baltimore.
    John K. Cowen.
    January 29, 1904.
    Deceived from Clark & Company, Interim Certificate No. 244 of The Mexican Mining & Exploration Company for 5,000 shares.
    Continental Building, Baltimore, Md. Dobert Garrett.
    The aforegoing facts were not controverted by any evidence offered on behalf of the appellants.
    
      Mr. Henry E. Davis for the appellants.
    
      Mr. Alexander Wolf and Mr. Maurice D. Bosenburg for the appellee.
    
      
      
         Brokers. — As to when a broker to sell real estate is entitled to commissions, see note to McGavock v. Woodlief, 15 L. ed. U. S. 884. As to when real-estate broker is considered as the procuring cause of the sale or exchange effected, see note to Hoadley v. Savings Bank, 44 L.R.A. 321. And as to performance by a real-estate broker of his contract to find a purchaser or effect an exchange of his principal’s property, see note to Lunney v. Healey, 44 L.R.A. 593.
    
   Mr. Justice Van Obsdel

delivered the opinion of the Court:

Appellee was dealing with appellants in the capacity of an agent or broker. The law is well settled that where a broker is employed to sell property upon a commission, and by his ■efforts brings the owner, or agency through which he is employed, and the prospective purchaser together, and a sale results, though it be accomplished by the owner or such agency without any further assistance by the broker, the broker is entitled to his full commission, the same as if he had conducted .all the details of the sale. The contract in this case provided that appellee should be paid not only for the sales he made, but for the sales that the company, or Clark & Company, its fiscal agents, should make through his influence. The agreement was broad enough to comprehend any prospective purchaser whom appellee, through his efforts, should discover and bring to appellants, and who, as a result of his influence, should after-wards purchase stock and pay for it. We think the efforts of .appellee as to both Cowen and Garrett bring him within the rule. The evidence discloses that when Cowen made his first purchase of stock through the efforts of appellee, he not only led appellee to believe that he would increase his holdings, but assured him that he would assist him in getting Garrett to buy some of the stock. When appellee reported this information to Davis, he was instructed to go with Cowen to Baltimore, and not only sell more stock to Cowen, but to see Garrett. Before appellee could see Garrett, Davis instructed him not to see him until he could notify him. Appellee was putting forth his best -efforts to dispose of the stock, both to Cowen and Garrett, when he was deterred by Davis from further negotiating with Garrett. The principal cannot interfere with the operations of his broker in that way, and thereby escape the payment of commissions that otherwise would have been earned by such broker.

The only question left for determination is, was the stock for which the receipts of Cowen and Garrett were given paid for ? The court instructed the jury as follows: “The plaintiff, if he is entitled to recover at all, is entitled to recover only to the extent that he proves, by a preponderance of the evidence, that the subscription to the stock described in the declaration was procured by him or through his influence, and that the subscription was actually paid for by the subscriber. It is not, however, necessary that the proof should be direct. If there is testimony on those points in the case, — if such facts develop which will justify the inference, — you may find the necessary element present. But it is for you to say whether or not that inference should attach. For example, if it is proven that the first Cowen subscription was procured through the influence of the plaintiff, and that there was a second subscription, then you are justified in inferring that the influence which procured the first was the same that procured the second, in the absence of anything to the contrary. And so, in Tespect to the question of payment for stock, if you find that stock certificates were actually delivered to subscribers, you may infer that they were paid for by the subscribers, in the absence of anything to the contrary. It is not a necessary inference, but one the drawing of which is in your discretion and judgment according to the case.” The instructions are assailed by counsel for appellants on two points: First, that the fact that the first Cowen subscription was procured through the influence of the appellee will not justify an inference that the same influence procured the second; and, second, that the delivery of certificates of stock io subscribers is not a presumption that such stock was paid for. The instructions of the court to the jury should apply the law to the facts as disclosed in the case in which they are given.An instruction correctly stating the law in one case, if given in another case, though similar, might be erroneous. We think that the court committed no error in the instructions here given, when applied to the facts of this case. The evidence of appellee’s dealings with Cowen, and the circumstances under which appellants prevented him from negotiating with Garrett, together with the receipts from Cowen and Garrett, showing the delivery of stock for which appellee testified he was informed Garrett paid $12,500 and Cowen $6,500 raises sufficient presumption of purchase and payment to cast the burden upon the appellants of removing that presumption. This the appellants have failed to do, and the court committed no error in instructing the jury that these facts could be presumed from the evidence adduced in the case. It must be remembered that no evidence was offered on the part of appellants to contradict any of the facts here stated. Appellee was not required, as insisted by counsel for appellants, to bring in the books of the company, or to produce further evidence of payment. The evidence produced by appellee was sufficient, in the absence of any contradiction, to shift the burden to the appellants of establishing the fact that payment had not been made, if such was the case. This was a fact peculiarly within their possession, and which they readily could have established.

The price for which this stock was actually sold to Cowen and Garrett is immaterial. The price for which appellee was directed to negotiate for the sale of the stock was $2.50 per share. It -was upon that basis that he brought the parties together. If the stock in question was sold for a less price than appellee was authorized to take, and the sale was consummated without notice of the reduction in price to appellee, he is entitled to recover his commission on the basis of a sale at $2.50 per share. If they sold the stock at a greater price than that given appellee upon which to base his negotiations, they have not been damaged and cannot be heard to complain.

The judgment is therefore affirmed, with costs, and it is so ordered.

Affirmed.  