Opinion by
Beaver,Plaintiff claimed from the defendant a commission for se*499curing a contract for materials to be used in and about the erection of a number of houses, for the delivery of which the defendant entered into a written contract with the builder, Hause. The plaintiff alleged that he had secured the contract from Hause. The defendant,-on the other hand, denied that the plaintiff had anything whatever to do with it; that the contract was closed and the written agreement, which was the evidence thereof, was signed before the plaintiff came into his employ and while he, the plaintiff, was in the employ of a rival in trade of the defendant.
We quite agree with the trial judge in the court below that the question involved in the case was purely one of fact and, in closing the charge, by way of summary, he very properly says :
“ After all, the question comes back to what I suggested at first — did of did not Plucker get this contract for the defendant ? He says he did; the defendant denies it. He says he left Matthew Hall on a certain day ; the defendant says he left on a different day. It is for you to find when this contract was awarded. There is testimony to the effect that it was awarded earlier than the date that plaintiff left Hall’s employ. One witness says it was as far back as February and Mr. Hawkins testifies that he, in response to a circular, had sent in an estimate with specifications, back in February, and the gentleman who was to have been the superintendent testifies to you that the contract was given to the defendant because of the action of Mr. Hawkins and not because of Mr. Plucker’s efforts.
“ Now that is rather a synopsis of the testimony than a thorough review of it. Of course, I cannot go over in detail all that the witnesses have said. You have heard all the testimony, and it is for you to determine whether the plaintiff is entitled to recover or not.”
We think the case was clearly one for the jury and that the point of charge of the defendant — that “ under all the evidence in this case your verdict must be for the defendant” — was properly negatived. The fourth specification of error must, therefore, also fail, as it is based upon the third which contains the point above referred to.
We see nothing erroneous in what is complained of in the *500second specification of error. It is simply a plain presentation of facts which was entirely impartial and made as much for defendant as the plaintiff.
The pivotal point in the case, as it seems to us, was, when did the plaintiff enter the employ of the defendant? Was it on March 9, as he (the plaintiff) alleges, or was it after March 16, when Hall’s bookkeeper testifies he paid the plaintiff his last wages for the week ending that date? Was it on March 18, the date fixed by Hawkins, who was the foreman of the defendant, or March 20, or later, as alleged by the defendant? Between the said dates as it is alleged by the defendant, the written agreement with Hause was actually signed and the contract finally closed. The date of the execution of this written agreement, therefore, became of the first importance. If it were signed on March 15, as alleged by Miller, in which he is partially corroborated by the subscribing witnesses, Lynch and McFarland, it would have been prior to Plucker’s employment, as claimed by defendant; or, if the agreement had not been signed until toward the last of April, as claimed by the plaintiff, it would have been subsequent to his employment, as testified to by the defendant’s witnesses. The time of the execution of the written agreement was, therefore, a vital point in the case and was, in a measure, decisive of it. In this view of the case, we think the portion of the charge assigned for error in the first specification was possibly misleading.
The court said : “ The execution of these contracts does not enter into the case in any way whatever, only in so far as they may explain to your satisfaction, if they do so explain, the delay, if there was any delay, upon the part of Mr. Plucker in demanding from the defendant the commission which be now claims to be due. If the defendant incurred any liability to the plaintiff, it was not at the time of the execution of the contracts, but at the time the work was brought to defendant. In other words, if Plucker had brought work, as he alleges he did, in March, and the contracts were not signed until months after the date of the execution of the contract, that would have nothing to do with his right to recover.” The importance of the date of the execution of the written agreements was, therefore, greatly minimized by what the court says in regard to it *501and, in commenting further upon it, only the time mentioned by the plaintiff as the date of the execution of it is referred to by the court, when he says : “ In other words, if Plucker had brought work, as he alleges he did, in March, and the contracts were not signed until months after the date of the execution of the contract, that would have nothing to do with his right to recover.” If this had been followed by something like this : If, on the other hand, the written agreements were signed on March 15, as alleged by the defendant, — andPlucker’s employment did not begin until after his employment with Hall as testified to by Hall’s bookkeeper, ceased, — it would have been practically impossible- for him to have secured the contract for which' he now claims a commission, — the whole case would have been adequately and impartially presented. As it is, this portion of- the charge is open to the objection urged to the charge as a whole in the fifth assignment of error.
In this view of the case, we are compelled to sustain the first assignment of error and also the fifth, so far as it relates to this portion of the charge. In all other respects, we think the charge was full, fair and adequate.
Judgment reversed and a new venire awarded.