It does not appear, from the-defendant’s statement, that the plaintiff was negotiating a sale of the lots in question for himself, or that Byron M. Holley was acting on his own behalf, with the intent of purchasing for himself All that the defendant says, having any reference to that subject, is that he never saw the plaintiff until he saw him in court at the time of the trial; and that Byron M. Holley never said, or insinuated, that he was acting for plaintiff. He does state, however, that he gave B. M. Holley “ until a Friday to report whether he could do anything, He called the day fixed, and said he could do nothing with the lots" Holley swears that he called on the defendant, at the request of the plaintiff, in reference to the lots in question, telling defendant at the time that the plaintiff sent him. That the defendant then said he was the owner of the lots, and that they Avere for sale. That defendant named the price, and said he would pay a commission of one per cent. Higgins SAvears that plaintiff informed him of the lots, and that he Avent to the defendant thereupon. The evidence on the part of the plaintiff proves an employment, a sum agreed upon as a compensation, and that the defendant Avas benefitted by the plaintiff’s services rendered. The defendant’s statement corroborates the evidence of B. M. Holley. If the plaintiff or B. M. Holley designed to purchase, and applied for that purpose, the defendant should have so stated. His silence, and the peculiar phraseology used by him in giving his testimony, justify the conclusion that such Avas not the case. The evidence of Jones, and of Higgins, in reference to a commission, affecting only the right of Higgins to charge one, does not conflict with the view presented of the agreement between the parties. But even were it otherwise, there is abundant testimony to sustain the finding, and in my opinion it cannot be said that the finding is clearly against the Aveight of evidence.
I think the judgment should be affirmed.
Judgment reversed.