The plaintiff was a salesman in the employ of the defendants, who were engaged in the business of developing and selling real estate. He was paid $30.07 per week and one per cent “commission on the sale price of all property owned by them *340which was sold while he was employed by them.” He also claimed the further sum of $500 as a “bonus” if one half of the Karlstein property, owned by the plaintiff, was sold, and $1,000 if the whole was sold, during the first year of his employment. He began work November 1, 1912.
The defendants admitted that on January 11, 1913, an agreement in writing was made to sell the Karlstein property (Exhibit 2) and that the deed was delivered January 23, 1913. They contended that while the plaintiff was to receive a commission on sales of all property owned by them, he was to recover no commission or bonus upon the sale of the Karlstein property.
The first item in the account annexed to the plaintiff’s declaration is for one per cent commission amounting to $500; the second item is for $1,000, the bonus claimed. The jury found for the plaintiff on the first item, for $452 and interest, this being one per cent of the amount of the sale of the Karlstein property. The defendants excepted to the refusal to give certain requests, and to all parts of the charge inconsistent with these requests.
There was evidence that the commission was to be paid the plaintiff if the sales were made, even if they were not brought about by his efforts. And it was admitted that the Karl-stein property had been sold. The first request properly was refused.
The defendants’ third request that “The signing of the agreement to buy and sell the Karlstein property did not constitute a sale of the same,” was refused. The plaintiff’s testimony showed that agreements like the one in question had been treated by the parties as sales. The plaintiff was not an ordinary broker who was to secure a customer in order to earn his compensation. He testified that on January 18,1913, he was informed by the defendants that the Karlstein property had been sold and “a new working basis was arranged . . . whereby after that date he was paid commissions on all sales made by him;” that “he continued to work on the new basis until March, 1913, when he ceased to be in their employ; that during the period from November 1, 1912, to January 18, 1913, while he was working on the basis of $30.07 per week and one per cent commission on all sales, numerous sales were made on which he was paid his commission; that all sales so made were made upon agreements to buy and sell, *341payment under which agreements were made at later periods on a monthly payment plan, and that commissions were paid to him as the amounts payable under agreements for purchase were paid to the defendants, and such commissions were so paid during the time he was in the defendants’ employ after January 18,1913, and for a considerable period after he had ceased to be in their employ.” It was a question for the jury whether the contract to “buy and sell the Karlstein property” was a sale, and the third request properly was refused.
The judge instructed the jury that “the agreement to buy and sell as set forth in Exhibit 2 was a sale of the property, and that if the agreement between the parties was that the defendants should pay the plaintiff one per cent on all sales made, then he was entitled to recover one per cent on the sale of the Karlstein property.” The agreement to buy and sell set forth in the exhibit was not as matter of law a sale. It was for the jury to decide whether it was or was not a sale within the contract between the plaintiff and the defendants. The instruction given directed the jury, as matter of law, that the agreement to buy and sell was an actual sale. That was wrong, and the defendants’ exception to it must be sustained.
By maiding the request and excepting to that part of the charge which was inconsistent with the request asked for, an exception was properly saved to the instruction given. Ellis v. Block, 187 Mass. 408, 414.
Exceptions sustained.