On the plaintiff's appeal the question is whether the trial judge, who observed the witnesses and the jury, erred in setting the verdict aside, and ordinarily that would depend upon whether the jury might reasonably, upon the evidence, have reached the conclusion which it did. In the present case, however, it appears that the action of the trial judge was not based upon his observation of the witnesses, but for the specific reason, as stated in his memorandum of decision, that the plaintiff was not the procuring cause of the sale. That is true, and if the contract of employment had been in the usual form, the action of the trial judge in setting aside the verdict on that ground would have been entirely correct.
The debatable question in the case is created by the plaintiff's testimony above quoted. In view of the personal relations between the plaintiff and the defendant, there was nothing inherently incredible in the *Page 495 plaintiff's story, and the jury might reasonably have believed, as they did believe, the plaintiff's version of the conversation, though it was contradicted and not corroborated. Assuming the plaintiff's testimony to be true, what is the legal effect of it? The offer which the plaintiff communicated to the defendant was a substantial one and indicated a real desire on the part of his customer to buy the property; and the defendant's promise to name a price at which he would sell to the plaintiff's unknown customer, in case Murphy did not want the property, may well be regarded as a conditional acceptance of the plaintiff's offer to act as a broker, on commission, in attempting to negotiate the sale to that particular customer, at a price to be thereafter named. It turned out that Murphy did not want the property, and so the condition was fulfilled. In addition to that, the defendant's promise to pay the commission "if I sell it to your customer," was made in consideration of the disclosure of the customer's name, and was a promise on good consideration to pay the plaintiff his commission in case the sale to Joslin and Allen was effected without any further assistance from the plaintiff, who had already interested them. The jury must have so regarded it, and we think the court erred in not giving effect to the defendant's promise to pay the commission in case he sold to the plaintiff's customer, and in holding that the plaintiff, notwithstanding that promise, was still bound to prove that he was the procuring cause of the final sale.
The complaint is not as specific as it should be, but the plaintiff's testimony was admitted without objection, and if there was any variance between the pleading and the proof, a motion to set aside the verdict as against the evidence was not a proper method of attempting to take advantage of such variance.
Turning now to the defendant's bill of exceptions to *Page 496 the charge. All the exceptions relate, in one form or another, to the supposed failure of the court to specifically charge the jury that in order to entitle the plaintiff to recover he must prove an employment, express or implied, to effect a sale of the property. The court did, however, specifically call the attention of the jury to the allegation in the complaint "that on or about October 1st, 1919, the defendant employed the plaintiff to sell for him a certain brick block," etc.; and did charge the jury that the burden rested on the plaintiff to prove the allegations of his complaint. This was enough. The jury must have understood that the plaintiff was bound to prove an employment to sell the property.
On the defendant's bill of exceptions we find nothing erroneous. On the plaintiff's appeal from the action of the trial court in setting aside the verdict, there is error, and the cause is remanded with directions to enter judgment on the verdict.
In this opinion the other judges concurred, except GAGER, J., who concurred in the result, but died before the opinion was written.