This cause is before the Law Court on defendant’s. motion and exceptions. It is an action of assumpsit containing two counts. In the first the plaintiff alleges that the defendant is indebted to him, according to an account annexed, for $6000 as commissions upon the sale of 12,800 acres of timber land.
In the second count he alleges that at the defendant’s request he performed certain labor and services for him in selling and assisting to find a customer for said land and that in consideration thereof the defendant promised to pay him so much money as he reasonably deserved to have therefor, which 'he avers is the sum of $6000. There was also the common money count with specifications thereunder.
The land was sold for $115,000, and it was admitted that if the plaintiff was entitled to recover under , the first count for commissions the damages would be 5% on the selling price, or $5750. The verdict was $1425, showing that the jury did not find the plaintiff entitled to recover the commissions sued for, but that he was entitled to recover that sum for his labor and services sued for under the second count in his writ.
I. The motion. Two written options, or contracts, given by the defendant to the plaintiff were put in evidence, under which the plaintiff was authorized to sell the land on commission at 5%, within a specified time, and at .a price named. The first option was dated March 15, 1905, and continued up to May 1 following. The other option was given February 18, 1908, for thirty days with the privilege of an extension for thirty days more. The plaintiff contended that between the time the first option expired and February 18, 1908, two other options were given him. This the defendant denied. The property was not sold during the life of either of the written options, but was conveyed by the defendant to the Great Northern Paper Company by deed dated September 1st, 1909.
In answer to questions on cross examination the plaintiff further stated that before the time of the Record conference and soon after the option of March 15, 1905, was given, the defendant promised him that he would pay him for his services in trying to find a customer for the property,: even if the property should be sold to other parties by the defendant. On the other hand, the defendant testified that he never at any time promised to pay the plaintiff anything for his services in case he did not sell the property under the written options, or producé a customer for it able and willing to buy it under the terms of the options. Whether there was such a contract, as the plaintiff claimed, in addition to
That issue was stoutly contested, with the testimony of the plaintiff and defendant sharply in conflict, and the jury found the issue in the plaintiff’s favor. If they believed him and accepted his testimony as against the defendant’s their finding in his favor on this branch of the case was justified. After a careful examination of all the evidence in the case the court does not find that the jury’s conclusion was unmistakably wrong.
The defendant complains further that the damages awarded are so excessive that a new trial should be granted. It is to be borne in mind that the plaintiff contended, and the jury may have so found, that the defendant had promised to pay him (in case he should not be entitled to commissions under the options) for all his services and disbursements in trying to find a customer for the land during the whole period from the time of the first option in March, 1905, to the time of the sale of the property in September,, 1909, a period of 4J years. The extent and character of the
The exception. The defendant excepted to the following instructions to the jury as to the damages the plaintiff might recover under his claim for services as sued for in the second count in the writ: “You are to make the plaintiff whole as near as you can. I don’t know how you will figure it. It appears that the plaintiff did more or less work. It seems impossible for him to state what he did, but in arriving at the amount which he is entitled to, if entitled to anything, you will consider the value of the property and the efforts which he made, according to the evidence, and determine what would be a fair, a reasonable price for the services performed.”
The defendant contends that the instructions excepted to were erroneous because the jury were told to consider the value of the property. We think the value of the property was a proper element for the jury to consider. It was material to the question whether the services claimed to have been rendered were reasonable in kind and extent, for what would be a reasonable service and expense in an effort to sell a tract of land valued at $100,000 might be grossly unreasonable concerning a tract worth only $100. The plaintiff claimed that he was employed by the defendant to continue his efforts to find a purchaser'for the property, and keep it upon the market, under an express promise that even if he did not make a sale of the property, so as to be entitled to commissions, he should nevertheless be paid for his services and expenses.
That employment, if it existed as the plaintiff claimed, was confidential and responsible, and what would be a. reasonable compensation for the services rendered under that employment would depend somewhat at least upon the extent of the responsibility.
In Kentucky Bank v. Combs, 7 Pa. St., 543, Combs claimed compensation for his services in ineffectually endeavoring to procure
In the case at bar a fair and reasonable compensation for plaintiff’s services in trying to sell the defendant’s land, recoverable under the special promise of payment therefor as claimed by the plaintiff, might not be fully ascertainable from the mere fact of the number of letters the plaintiff wrote concerning the land, or the number of conferences he had with prospective purchasers, or the precise number of days actually employed in the service, but also from a consideration of the responsibility imposed upon the plaintiff by the employment, and that responsibility was determinable to some extent by the value of the property.
It is therefore the opinion of the court that the instructions complained of were not erroneous.
Motion and exceptions overruled.