A petition for a rehearing has been filed on behalf of Dr. Sharber, through which it is insisted that the finding of this court, that Dr. Sharber agreed and contracted to pay W.W. Dillon Co. $1,200 for services rendered, was based upon an erroneous appraisal of the evidence.
Complainant's witness Mr. Bryan testified, in substance and effect, that Dr. Sharber promised to pay W.W. Dillon Co. $1,200 for services rendered in effecting the exchange of properties shown in the record, and that this promise was not upon condition that W.W. Dillon Co. would sell the Robertson county farm or upon any other condition, except that he would want six or twelve months' time in which to pay said sum.
On the other hand, Dr. Sharber testified, in substance and effect, that he declined and refused to pay W.W. Dillon Co. anything for effecting the exchange of properties, but that he agreed that if Bryan (for W.W. Dillon Company) would sell the Robertson county farm within twelve months he would pay $1,200 commissions.
Both Bryan and Dr. Sharber were interested witnesses, and, as the burden was on complainant to prove the contract upon which its suit was based, it seemed obvious that the complainant's suit must fail unless the testimony of Mr. Bryan was corroborated by other evidence. We found such corroboration of Bryan in the testimony of W.W. Dillon, Jr., to the effect that, subsequent to the consummation of the exchange of properties, he went, on two occasions, "specifically to talk to Dr. Sharber about the commissions," and "he (Dr. Sharber) never denied liability," and never mentioned the sale of the farm as a condition of his liability for a commission.
"The silence of a party when a statement is made in his presence, against his interest, and is heard and understood by him, and is made in such way as to call upon him to deny it, if untrue, and the facts are within his knowledge, and the statement is made under such circumstances as naturally to call for a reply, amounts to an admission of the truth of the statement made, and may be sufficient to establish the fact as against him." Ency. of Ev., vol. 1, p. 367.
So, in our former opinion, we said:
"A demand upon, or an appeal to, Dr. Sharber by W.W. Dillon. Jr., for the payment of a commission would naturally evoke a denial of liability if Dr. Sharber did not understand that he owed such commission; and his silence, under the circumstances disclosed, may be considered as evidence of an admission of liability. 3 Jones on *Page 504 Evidence (2 Ed.), sec. 1044, p. 1923; Queener v. Morrow, 1 Cold., 123, 129. This affords strong corroboration of the testimony of Bryan to the effect that Dr. Sharber agreed and contracted to pay complainant a commission of $1,200, and we so find."
We are content to adhere to our former opinion, and the petition to rehear is denied and dismissed at the cost of the petitioner.
Crownover and DeWitt, JJ., concur.