This is a suit to recover on a promissory note executed by defendants and payable to plaintiff, dated June 25,1908, due in thirty days after date.
The defendants resisted payment on the ground that it was without consideration.
The facts disclosed by the evidence are that plaintiff while engaged as a real estate broker acted as agent for the defendant, C. A. Thompson, in procuring an exchange of his property for that of a man of the name of Doty, and it is also admitted by plaintiff at' the same time that lie was the agent also of said Doty. After the exchange had been made, J. T. Edling, plaintiff’s agent, according to the testimony of the defendant, said: “Now, Mr. Thompson, let us settle this commission business;” that he said in reply tliat he did not understand he was to give any commission, as he supposed that plaintiff was handling the deal on the part of Mr. Doty. Ed-ling said: “I expect a commission out of each;” and that he finally said: “If you don’t pay me a commission, I won’t get anything.” Not having the money he gave the note in question.
Doty testified that he paid Edling, the plaintiff’s agent, as’commission or his services in the matter, $250; aud that he did not know during the time in which the negotiations were pending that plaintiff was acting for the defendant.
After the note was introduced in evidence Edling was introduced and after testifying that the signatures to the note were those of defendants and that it had not been paid, he was'cross-examined by the defendant. He admitted that he was as agent of plaintiff acting for both parties in the deal; and that he notified each that he was acting as agent for the other.
*546The plaintiff asked the court to instruct the jury the practical effect of which was, that, the hurclen of proof was on defendants to show to the satisfaction of the jury by a preponderance of the evidence, that defendant Thompson and Doty were not aware of the fact that plaintiff was acting as agent for both of them in the transaction. Other instructions were given, but we do not think they were objectionable.
The jury returned a verdict for the defendants. Plaintiff appealed from the judgment.
The court committed error in the refusal of said instruction. Respondent insists as a different result could not have been reasonably expected, the cause should be affirmed. It is not for us to say what the verdict of the jury would have been had they been properly instructed. The error was not merely technical, hut of a most substantial character.
Reversed and remanded.
All concur.