143 Ark. 135 | Ark. | 1920
(after stating the facts). The court instructed the jury that if it should find from the evidence that there was an agreement between plaintiff and defendant that the former should procure a purchaser, and that upon a sale to said purchaser the plaintiff and defendant were to share equally in the profits, and that the plaintiff produced Broussard as a purchaser, and that the plaintiff was the procuring cause of the sale of land in controversy, the jury should find for the plaintiff in the amount sued for, unless it should further find that the plaintiff waived or abandoned his claim for commissions.
According to the complaint, the plaintiff sued for 5 per cent, commissions, and the jury returned a verdict in his favor for $600. The land was sold on a credit to Broussard for $12,000. The amount of commissions at 5 per cent, then would amount to $600. This was the commission sued for and was also the amount for which the jury returned a verdict. It showed that the jury obeyed the instructions of the court in returning its verdict.
The instruction of the court was wrong. It will be noted that the court instructed the jury that if the plaintiff was the procuring cause of the sale of the land to Broussard it should find for the plaintiff in the amount sued for,, unless it should further find that the plaintiff had waived his claim for commissions.
According to the testimony of McGahhey himself he was to receive as commission one-half of the final profits arising from the sale of. any tract of land that they might make to Broussard. The sale was made on a credit. Broussard died after holding possession of the land for two years without making any payment except a small one. The profits arising from the sale have not yet been determined and depend upon the result of a foreclosure suit against the widow and heirs of Broussard. Hence the instruction was erroneous in telling the jury that plaintiff was entitled to recover the amount sued for and that error was necessarily prejudicial to the rights of the defendant.
It is next insisted that the court erred in refusing to give instruction No. 7 at the request of the defendant. The instruction is as follows:
“You are instructed that if you find from the evidence that, at the time of the conversation between the plaintiff and defendant with reference to the Morehead farm, that the defendant did not own the farm which was traded by the defendant to Broussard, and that the contract or conversation with reference to the Morehead farm had no reference to the farm which was actually traded, then the defendant would have the right to sell or trade said farm to Broussard and would not be liable to the plaintiff for a commission, as the plaintiff’s agency was limited to the sale of the Morehead farm and did not cover the sale or trade of the other farm which was actually traded, and you will find for the defendant.”
The instruction is faulty in the form in which it was requested because it, in effect, assumes that the plaintiff’s right to recover was limited to a sale of the Morehead farm, when under the testimony that question should have been submitted to the jury. According to the testimony of the plaintiff he was to share in the profits arising from any sale made to Broussard. According to the testimony of the defendant their whole conversation with regard to a sale to Broussard was restricted to the More-head place. Hence the court did not err in refusing to give the instruction in question in the form as requested. While the defendant was entitled to have his theory of the case submitted to the jury, it was his duty to have prepared and asked for a correct instruction.
As above stated, the court erred in telling the jury that if the plaintiff was entitled to recover at all, he was entitled to recover the commission sued for.
For this error the judgment must be reversed and the cause remanded for a new trial.
