Argued April 14, 1925. Action in assumpsit by a real estate broker for commissions alleged to be due him for securing a buyer for defendants' farm. *Page 554
It was not disputed that an oral contract had been entered into between the plaintiff and Mr. Hart looking to a sale of the farm. The disagreement was as to the terms of the contract. The plaintiff alleged that he was to receive all that the farm sold for in excess of $5,000, and that the asking price was to be $5,500. On the other hand Hart testified that the agreement was that the plaintiff was to have $500 if he sold the farm for $5,500 within two weeks thereafter. If sold after that period plaintiff was to receive less, as defendants were to be compensated for planting a thousand grape roots and doing certain other work; but the exact amount to be paid as commissions was not fixed. According to Hart's story the arrangement was to expire at the end of sixty days. Plaintiff procured a purchaser at $5,500 about five months later, and sued for $500 commission.
With this conflict of evidence as to the terms of the contract it was not for the court to decide the disputed questions of fact or any of them. Plaintiff presented the following point: "If the jury believe that the plaintiff during the continuance of his agency procured a purchaser for the defendant's property who was ready and willing to comply with the defendant's terms then your verdict should be for the plaintiff for $500," which the court answered as follows: "That point is affirmed if you find that there was a contract between the plaintiff and defendants, or either of them."
This assumed as a fact, that if there was a contract between the parties, the plaintiff was entitled to a verdict of $500; regardless of whether the jury believed the plaintiff's or defendants' version of its terms. This was error. The second assignment is sustained.
As the services for which the plaintiff asked compensation were not performed until he was duly licensed as a broker, we find no error in the court's refusal of the defendants' motion for judgment non obstante veredicto.
The judgment is reversed and a new trial awarded. *Page 555