
    A. D. Offutt v. C. P. Barrett et al.
    [63 South. 333.]
    Tbial. Conflicting evidence. Question for jury.
    
    Where on the trial of a case the evidence is conflicting and the court cannot say that it is not sufficient to uphold a verdict for the plaintiff, a peremptory instruction for the defense should not he given.
    Appeal from the circuit court of Hinds county.
    HoN. W. A. HeNry, Judge.
    Suit by A. D. Offutt against O. P. Barrett and others. Prom a judgment for defendants, plaintiff appeals.
    Appellant brought suit against appellees for commissions as a real estate broker on the sale of certain lands. He testifies that appellees listed the land with him and other real estate dealers for three thousand dollars, and agreed to pay a commission of five per cent, to the dealer in case of a sale. Appellant approached another dealer, Holloman, who had a customer ready and willing to purchase the land. After some little delay a sale was concluded, and the purchaser agreed to give Holloman five hundred dollars over and above the purchase price of of three thousand dollars, provided Holloman would secure a release of the interest of a life tenant to twenty acres of the land, which Holloman subsequently did. Appellant then demanded of appellees Ms commission of one hundred and fifty dollars, and was advised by ap-pellees that they had settled with Holloman. It is shown, however, that appellees did not pay Holloman any commission, but that Holloman’s commission of five hundred dolíais over and above the list price of the land was paid by the purchaser. Appellees testify that appellee was to receive no commission unless a sale was made within- a stipulated time limit, which had expired before negotiations were concluded, but not before negotiations with the purchaser had been begun. There is conflicting testimony with reference to the understanding between appellant and appellees about the commissions, and on the trial the court instructed the jury to find for appellees.
    
      Butler, Easterling & Potter, attorneys for appellant.
    
      Watkins & Watkins, attorneys for appellee.
   Reed, J.,

delivered the opinion of the court.

Upon the trial of this case when the plaintiff and defendants had both rested, the court instructed the jury to find for the defendants. We think the court erred in doing this. The record discloses a clear conflict in the testimony for the plaintiff and defendants. We cannot say that the evidence adduced would not be sufficient to uphold a verdict for the plaintiff. We believe that the case should have been submitted to the jury.

Reversed and remanded.  