It is contended by appellants that, even if plaintiff’s version of the contract be conceded, that he was only to procure a warrant in summary proceedings and to withhold actual dispossession of the sub-tenant until defendants could have the advantages of selling on the premises the furniture procured from them by the latter on conditional sale, and that he had performed all that he agreed to do in notifying defendants so that they could proceed and sell on the premises, yet that the contract of defendants to pay him $266 upon such performance was waived or canceled by the subsequent request of plaintiff, acting as attorney for his tenánt, for indulgence while he negotiated to procure means to settle the indebtedness to defendants.
There would be great force in this contention if the plaintiff had not sworn positively that “ his offices between Cofrode (the tenant) and. Horner & Company ” (the defendants) were done at the suggestion'of the latter, notwithstanding that he had stated it was his wish to get possession immediately, as he had another tenant. Under the evidence it was not clear that the .parties intended, by giving an opportunity to the tenant and sub-tenant to pay, to abrogate the original contract between plaintiff and defendants, and the submission of the case to the jury without moving for a dismissal of the complaint at the close of the whole evidence and without the request for a direction of a verdict, was, under the authorities, a concession that there were questions of fact controlling the case to be passed upon by them. Their verdict under such circumstances cannot be disturbed, there being sufficient evidence to sustain even if we regarded the testimony as warranting a contrary conclusion. .
Judgment affirmed, with costs.