No particular form in alleging and saving exceptions is required. If the court understands that counsel except to a ruling, or refusal to rule, a refusal of instructions, or instructions given to a jury, it is sufficient. Leyland v. Pingree, 134 Mass. 367. The danger in not taking an exception expressly and formally is, that the judge may not *484understand that counsel intends to except, and thus the exception be lost.
In the present case, we must assume, from the fact that the judge allowed the exceptions, that he understood the counsel of the defendant excepted to his refusal to instruct the jury as requested, and to the instruction given.
■ Although it does not appear from the bill of exceptions, as it should, that the verdict was against the defendant, the record of the case which is sent up shows that to have been the fact.
We understand from the bill of exceptions that it was not controverted that it was agreed between the plaintiffs and Ellis, that, if he succeeded in getting his friends to purchase the place, he should share in the commissions they were to receive from the defendant, or that this suit is prosecuted for the joint benefit, and at the joint expense, of the plaintiffs and Ellis. These being the facts, the plaintiffs and Ellis were partners as to the business of effecting a sale of the defendant’s premises to Mr. and Mrs. Platt, and the commissions for which this action is brought were the profits of the business. Lindley on Part. (4th ed.) 19, 20,55.
There was evidence tending to show that Ellis told the defendant that no broker had anything to do with the trade, and that a price was named on that understanding. If this evidence was believed, a direct fraud was practised upon the defendant, for the purposé of effecting a sale which was to result in commis-. sions in which the plaintiffs and Ellis were to share as partners ; and this fraud would prevent a recovery in this action, though the plaintiffs did not participate in it.
The jury should have been instructed substantially as requested by the defendant.
^Exceptions sustained.