delivered the opinion of the court, January 7th 1878.
According to the terms of the contract executed by the parties on the 6th day of May 1874, the plaintiff below agreed to use his best endeavors to sell, for the defendant, one hundred and twenty acres of coal, and in case of a sale by him, “ or from his efforts to sell,” the defendant agreed to pay him all that it should “be sold for over and above $50 per acre.” On the fourth of August following, the coal was sold, by articles of agreement, to Moses Scott for $55 per acre, and the plaintiff, claiming that the sale had been effected by his agency, demanded $600 as compensation for his services, rendered in pursuance of the contract.
The main grounds of defence were that the time, within which the plaintiff was authorized to negotiate a sale, was limited to three weeks, and had expired before Moses Scott agreed to purchase ; that the sale to Moses Scott embraced grants and concessions, by the defendant, which the plaintiff was not authorized to make in any sale he might have effected under his agreement with the defendant, and that the plaintiff could not recover without showing that he had a license to act as a real estate broker.
The question of law, involved in the last-mentioned ground of defence, was reserved, and afterwards rightly decided in favor of the plaintiff below. Under the pleadings his right to recover did not depend on proving that he had a license; and, aside from this, there was no evidence that the plaintiff was engaged in the business of a real estate broker, as an occupation, or that he held himself Out to the public as such.
*332The court was clearly right in affirming the plaintiff’s second point and thereby instructing the jury that if they found “ the plaintiff was the procuring cause of the sale he would be entitled to recover under his contract, unless it had been terminated by lapse of time, or was rescinded before the sale to Moses Scott.” The questions of fact upon which the case mainly turned were thus fairly presented and submitted to the jury. If the sale to Moses Scott was negotiated by the plaintiff, or resulted from his efforts, he was entitled to the compensation fixed by the agreement, unless the jury found from the evidence that the contract had previously expired by limitation, or had been rescinded by the parties. The contract itself is silent as to the time within which the plaintiff ivas authorized to negotiate a sale; but the implication of law would be that it should be done within a reasonable time, and this would be a question for the jury. The defendant, however, contended that when the contract was signed, it was expressly agreed that the time should be limited to three weeks; that afterwards, the plaintiff requested an extension of time, which was refused, and it was then mutually understood that the contract was no longer in force. Testimony bearing on this point was offered by both parties, and submitted to the jury with instructions as to the nature of the proof required to establish the limitation contended for by the defendant. This portion of the charge is assigned for error.
After stating to the jury what was claimed by the defendant, as to the limitation agreed upon at the time the contract was executed, &c., the learned judge instructed them, that if they were satisfied from all the testimony in the cause that the facts were so, the plaintiff could not recover; that the written contract, as it stood, was with the plaintiff, and therefore the onus was on the defendant to satisfy them by “ positive and clear testimony,” that the time was limited to three weeks ; that they should “ scan all the testimony in the cause,” and say whether the defendant had satisfied them “ by clear and positive proof, of the fact that it was limited to three weeks and then declared off.” After referring to the conflicting testimony of the parties themselves, and the corroborative testimony introduced on both sides, he concluded by saying, “ all these circumstances you will take into account in determining whether or not the contract is as written, or whether it is as claimed by the defendant.”
The plaintiff in error has no reason to complain of this branch of the charge. The testimony was fairly submitted to the jury, with proper instructions as to the character of the proof that Avas required to sustain his proposition. While the parol testimony introduced by him did not contradict anything expressed in the written contract, its purpose Avas to restrain its operation as to time, and thus vary its legal effect. In such cases it is not requiring too high a 'degree of proof to say that the testimony should be clear as *333Avell as positive. It should undoubtedly be clear, and there is no reason why it should not be positive also, as contradistinguished from testimony of a negative character. It is in this sense that the instruction Avould be understood by the jury. None of the testimony Avas Avithheld from the jury. They were instructed, as we have seen, to carefully consider it all, and take into account all the circumstances; and if they were satisfied, “ by clear and positive proof,” that the time was limited to three weeks, they should so find. This was quite as favorable as the plaintiff in erroi had a right to ask. We find no error in any of the assignments.
Judgment affirmed.