Dodds v. Estill

Hall, J.

— This was an action by the plaintiff for the recovery of a commission for having, as a real-estate broker, procured a purchaser, to whom the defendant effected an exchange of his real estate. The terms on which the exchange of defendant’s property was to be made were not fixed by him in the employment of the plaintiff, but were left open to be arranged by the defendant.

After the purchaser, to whom the exchange was afterwards effected by the defendant, was procured by the plaintiff, the negotiations between the purchaser and defendant lingered for several months before the exchange was consummated; and the real question in the case was as to whether the original negotiations were broken off and abandoned, and new and independent negotiations were entered into by defendant without the procurement of the plaintiff, which resulted in the exchange, or whether the entire negotiations were all connected together, constituting one continuous transaction, all procured by the plaintiff. The action of the court, on account of which error is assigned by defendant, against whom the plaintiff obtained judgment, is in the giving of one instruction. No complaint is made to the other instructions given for the plaintiff; and the court gave all the instructions asked by the defendant.

The instruction complained of is as follows: “ The court instructs the jury that the commissions of a broker are due when he has found a purchaser who buys> the property, and his right to such commissions is not affected by a modification of the terms of payment between the buyer and the seller different from the terms first given by the seller to the broker.”

This instruction is but little more than a mere abstraction, and does not apply the principle enunciated to the facts of the case. It clearly does not purport to cover the whole case. The jury are not directed by it to do anything in view of the statement contained in it. It was intended to be, and must have been, considered by the jury in connection with the other instructions given in the case.

The instruction, it is true, entirely ignores the real issue of fact in the case, but on account of what we have just stated, and in view of the following instruction given for the defendant, we think that the jury could not have been misled thereby as to that issue.

The instruction referred to is as follows: ‘ ‘ Although the jury believe from the evidence that the plaintiff was the agent of the defendant, andas such opened the negotiations with Martin and Moore, and first called their attention to the defendant’s property, yet if the jury believe that such negotiations failed to result in any contract of exchange between said Martin and Moore and defendant, but that the same were broken off, and that afterwards new negotiations were had between said Martin and Moore and the defendant, in which plaintiff had no part, which resulted in an exchange of defendant’s property, then plaintiff cannot recover.”

By this latter instruction the defendant’s side of the issue of fact was pointedly put to the jury, and the effect of their finding in favor of that side was explained to them. There was nothing to the contrary stated in the instruction complained of, and all the other instructions in the case were in full harmony with the defendant’s instruction. For these reasons we do not think the objection made to the action of the court well grounded. And the judgment of the circuit court is, therefore, affirmed.

All concur.