
    COURTNEY C. NAIRN v. LUCE, CREHORE, & CO. ET AL.
    San Juan, Law,
    No. 439.
    Plaintiff and defendants entered into a contract whereby plaintiff was> to find a sale for defendants’ land, the latter, however, reserving to themselves the right to know the name of the proposed purchaser, and to finally accept or reject his bid. Held: That plaintiff’s commission was not earned unless defendants accepted the bid.
    If such bidder agreed to pay the price fixed by defendants, with knowledge on the part of the plaintiff that the defendants had already closed with a third party, then plaintiff’s commission was not earned..
    As long as an unconditional offer is pending, it may be accepted.
    An issue on which no proof, or not suflicient proof, was presented, will, be withdrawn from the jury.
    Case tried April 30, 1907.
    
      Mr. Henry F. Hord and Mr. Joseph Anderson, attorneys, for plaintiff.
    
      Mr. F. H. Dexter, attorney for defendants.
   Instructions by

Rodey, Judge:

The facts sufficiently appear from tbe instructions.

Rodey, Judge, omitting the formal parts, gave the following" charge and instructions to the jury:

This is a suit by the plaintiff, Mr. Nairn, against the several defendants mentioned in the complaint, which is before you, for the sum of $2,000, which he claims for services and commissions .alleged to have been rendered and performed by him as shown .you by the evidence. The defendants admit that the plaintiff is entitled to recover a 5 per cent commission on two sales that were made, and which amounted to $1,500, and they also admit that he is entitled to a similar commission on some $30 collected for pasturage, etc. On these admissions, you are instructed that you must find for the plaintiff to that extent in .any event. • Defendants deny, and therefore it is submitted to you, as to whether or not plaintiff ought to have any compensation for his care-talcing of the premises, about which evidence has been introduced, and for superintending repairs on a house, which latter defendants paid for, amounting to some $160.

If you believe, from a preponderance of the evidence, that plaintiff performed this care-talcing and the other services at the request of the defendants, and that he was not in any other manner compensated therefor, then you are instructed that it is your duty to allow him what you may believe, from a preponderance of the evidence, to be reasonable compensation in the premises for such particular service, and add it to the other .amounts admitted to be due him as aforesaid.

You are instructed that, even though the evidence shows that this plaintiff was appointed an agent, with a right to make efforts to sell the property in question, still, if you believe, from :a preponderance of the evidence, that the defendants reserved to themselves the right to know whom plaintiff was dealing with before they ratified the transaction, and to have the name submitted to them, then, until plaintiff had done so, and they were satisfied with the terms and the purchaser, they would not be bound to pay any commission to plaintiff in tbe premises, no matter how much work the latter may have done in and about trying to make the sale, and you could not, in such case, allow plaintiff anything therefor.

You are further instructed that the evidence shows conclusively that defendants never finally accepted any offer made to them through plaintiff to sell their land to Mr. Beanies or Judge Hord, and therefore you must find for the defendants as to that; that is, ignore the matter as against defendants.

If you believe, from a preponderance of the evidence, that the plaintiff submitted an offer of $12,000 on certain terms to the defendants for their land, from Mr. Padin, and that they, knowing who the bidder was, answered that they would accept $15,-000 on the same terms, and you further believe, from a preponderance of the evidence, that such offer of $15,000 was submitted to Padin by the plaintiff, and Padin accepted the same, then you are further instructed that, if you believe, from a preponderance of the evidence, that, at the moment of submitting that offer from defendants to Padin, he, the plaintiff, had knowledge that defendants had already either sold to Behn Bros., or were holding the property for them, then plaintiff would not be entitled to recover any commission on such sale, and you should find against him in that regard; but, if you believe that plaintiff submitted that offer to Padin, and the latter accepted it before plaintiff had any knowledge that defendants had already dealt, or promised to deal, with Behn Bros., then you are instructed that plaintiff had his commission earned at the instant of the acceptance, and the fact that information arrived to him after-wards, if you shall so' believe, instead of before that event, would not deprive him of his right to his commission on the sale of this land, and you should find in his favor in that regard; because, as matter of law, while an unconditional offer is pending from one person to another, that other person has a right to act on it. The rescinding of the offer after it had been acted on could make no difference in the earning of the commission, provided defendants knew they were dealing with Padin, and Padin was satisfactory to them.

If you find that the plaintiff is entitled to compensation or commission on the main sale, then the court instructs you that the rate to fix therefor is 5 per centum of the amount of the sale, under the evidence.

You heard all the witnesses, and noted their demeanor and manner on the stand, and you are the judges of the credibility to be given to their statements, taking into consideration, of course, their interest in the cause in arriving at your decision. As often stated before, if you believe that any witness has wil-fully sworn falsely as to any material fact, then you may disregard the whole or any. portion of his testimony not otherwise duly corroborated in the case.

The correspondence which was introduced in evidence is given you in a bundle numbered in blue pencil in a circle, from 1 to 38. It is supposed that these numbers properly show the sequential order as to time of the several communications between the parties. The telegrams, with a letter or two among them, are also given you in a bundle, and are in like manner numbered from 1 to 13, inclusive, and it is in like manner supposed that these numbers represent the sequential order of this correspondence between the parties.

The sequential order of both classes of correspondence, coupled with the evidence given orally, is important, and you are cautioned that, in your deliberations, yon must consider tbe difference between telegrams and letters, and tbe time wbicb, in your opinion, it would require for tbe one or the other to arrive at their destination, no matter what tbe date may be.

You will notice that you are restricted in your deliberations to tbe Padin transaction as governing tbe right of plaintiff to recover this larger commission. Tbe ITord-Beames transaction is not left to you by tbe court.

The pleadings will be given yob to carry to your room, wbicb, coupled with tbe correspondence qnd tbe oral testimony you beard and these instructions, must be tbe basis of your findings.

But one form of verdict will be given you, because you will appreciate that you must find for tbe plaintiff in any event, tbe only question being what items you shall include in your finding under these instructions. Yon may, as will be seen, find in bis favor for what is admitted, and for none, or any portion, or even tbe whole, of what is not admitted.

When you arrive at a verdict, it will be signed by one of your number as foreman, whom you appoint for that purpose, and returned into court. With these admonitions tbe cause is submitted 'to you.

Tbe verdict was for tbe plaintiff in tbe sum of $76.60.  