
    A. C. HOUSE v. R. B. BOYD et als.
    (Filed 7 March, 1917.)
    ■ 1 Issues — Pleadings—Appeal and Error.
    When the issues submitted relate to the disputed matter arising from ' the pleadings, whereunder all competent evidence can be submitted to the jury for their determination, they are sufficient.
    
      2,- Courts — Recall of Witness — Discretion—Appeal and Error.
    The permission by the court for a party to recall a witness who has already testified is within the sound discretion of the trial court, and is not reviewable on appeal unless it has been grossly abused.
    3. Principal and Agent — Commissions—Evidence—Trials—Questions for Jury.
    In this action to recover agent’s commission under contract for the sale of timber, it is Held, that the evidence of agency, and that of the efforts of the alleged agent to sell the timber, were sufficient; as to the former, of the fact of agency, and as to the latter, that the agent’s acts were the efficient cause of the sale, and that he performed his contract.
    Civil actioN, tried at August Term, 1916, of Halifax, before Winston, J., upon these issues:
    1. Was plaintiff the agent of the defendants in procuring the memorandum of 4 January, 1913, called the Palmer Camp contract? Answer: “Yes.”
    2. If he was not, did the defendants ratify the said contract of 4 January, 1913 ? Answer:
    3. Was the plaintiff the agent .of the defendants in the sale of the timber described in the complaint and on the terms therein stated? Answer: “Yes.”
    4. Did plantiff contract with defendants to sell and estimate the timber in question as the agent of the defendants? Answer: “Yes.”
    5. If so, did the plaintiff render all the services to defendants called for in the contract with the defendants? Answer: “Yes.”
    6. What necessary and reasonable expense did defendants incur in estimating the said timber which plaintiff agreed to pay ? Answer: “None.”
    7. What sum, if any, is plaintiff entitled to recover of the defendants ? Answer: “$2,000.”
    From the judgment rendered, defendants appealed.
    ¿r. B. Midyette, Peebles & Harris, W. L. Knight, W. B. Daniel for plaintiff-.
    
    
      T. T. Hides, Tasker Polk, George G. Green for defendants.
    
   Per Curiam.

The foundation of plaintiff’s cause of action is an alleged agreement by defendants to pay him a commission of three-eights of all the purchase price over $30,000 for effecting the sale of standing timber on the lands purchased by defendants from G. E. Ransom.

The defendants excepted to the issues submitted and tendered other issues.

"We tbink tbe issues submitted present for decision of tbe jury sucb disputed matters of fact as arise upon tbe pleadings and not upon tbe evidence. "When sucb is tbe case, objection will not be entertained to tbe mere form in wbicb issues are submitted. If tbe issues are so formulated that each party to tbe action can introduce pertinent and competent evidence upon any material matter in a controversy, and put at issue by tbe pleadings, they are sufficient. Clark’s Code, cb. 2, pp. 311-393.

Tbe defendants excepted to tbe introduction of tbe deposition of P. D. Camp, upon wbat ground we are not informed in tbe brief. "We see no irregularity set out in tbe record, and tbe objection was properly overruled.

Defendants except to tbe court allowing tbe recall of plaintiff for further examination.

This is a matter resting in tbe sound discretion of tbe court, and not reviewable unless grossly abused, as bas been repeatedly beld by this Court. Tbe defendants moved to- nonsuit at close of tbe evidence. Tbe motion was properly overruled.

Tbe evidence of plaintiff, taken in its most favorable light for him, tends to prove that tbe defendants purchased tbe land and timber from G. E. Ransom for $60,000; that they contracted with one Palmer and plaintiff to sell tbe timber on tbe land; that tbe final and last agreement was to pay Palmer two-eigbts and plaintiff three-eights of tbe purchase money received for tbe timber over and above $30,000. Tbe evidence tends to prove that tbe timber was sold to P. D. Camp, trustee, and tbe Camp Manufacturing Company, and $39,007.44 received by tbe defendants therefor.

It is earnestly contended that plaintiff was not tbe agent of defendants in tbe sale of tbe timber and not an efficient cause in effecting tbe sale. There is evidence upon tbe part of plaintiff disclosing bis efforts to sell tbe timber, from wbicb tbe jury bad a right to- infer that be materially assisted in effecting a sale of tbe timber and that be fully performed tbe agreement upon bis part.

There are no assignments of error relating to tbe evidence, but quite a number to tbe charge and to tbe refusal of tbe court to give certain prayers for instruction. We have examined tbe charge as applied to each issue and tbink tbe learned judge presented tbe case to tbe jury fully and clearly and with perfect fairness to both plaintiff and defendants.

Tbe whole controversy seems to be largely one of fact, and in tbe trial of it we'find

No error.  