194 Mich. 610 | Mich. | 1917
The defendant listed his farm for sale in plaintiffs real estate agency at Sault Ste. Marie in the summer of 1918. Subsequently plaintiff found him -a buyer who purchased the farm. It was the claim of plaintiff that he was entitled to an agreed commission thereon of $600. The case was called in the circuit court, and the trial, proceeded upon the expectation by defendant’s counsel that defendant, who was absent from the city, would return in season to testify in his own behalf. He failed to return before the testimony was concluded, and the trial court directed a verdict for the plaintiff for the amount of his claim. Exception was taken by defendant to the direction of a verdict, and the question is now raised that:
“The court erred in directing a verdict for plaintiff, as there was. no evidence before the court as a basis for the judgment. The alleged verbal contract was void under the statute of frauds.”
“In the summer of 1913, I think, I talked with Mr. Denton relative to the sale of his farm at Pickford, and he listed it with me to sell.”
It appeared that the contract was an oral one. This being so if it were made prior to August 14th, it would be valid. If it were made after that date, it would be void because not in writing. This testimony came in without objection. Counsel objected and excepted to-
Neither can the defense of the statute of frauds be first raised in this court. Beld v. Darst, 146 Mich. 143 (109 N. W. 275); 2 Standard Enc. Prac. 241-242.
The assignments of error based upon the refusal to grant a new trial cannot be considered, because the reasons for the court’s refusal do not appear in the record. Neither does it appear that a timely request was made therefor. Toban v. Modern Woodmen, 126 Mich. 161 (85 N. W. 472); Gillett v. Burns, 131 Mich. 616 (92 N. W. 104); Wilbur v. Railroad Co., 145 Mich. 344 (108 N. W. 713); Bass v. Railway Co., 142 Mich. 177 (105 N. W. 151, 2 L. R. A. [N. S.] 875, 7 Am. & Eng. Ann. Cas. 718).
As no reversible error appears of record, the judgment must be affirmed.