34 Neb. 1 | Neb. | 1892
The plaintiff in error brought suit in the district court to recover the sum of $500 as compensation for services alleged to have been rendered by him in the sale of certain real estate owned by the defendant. The jury returned a verdict for the defendant.
John Fonner, in 1885, owned a farm in Hall county, consisting of 880 acres, which he leased to the plaintiff and his two brothers for that year at a cash rental. In the month of February, 1886, the defendant traded the farm, with other lands, to one Levi Cox, for a stock of goods.
The testimony introduced on behalf of the plaintiff tends to show that at the time the defendant leased the farm, Mr. Fonner agreed if the plaintiff procured a purchaser for, or succeeded in selling the farm, for $17,000, he would pay the plaintiff for his services $500.
The testimony of the defendant is to the effect that he never employed the plaintiff and never had any conversation with him upon the subject, but that he engaged West & Schlotfeldt to sell the property; that they effected the exchange with Levi Cox, and defendant paid them therefor.
It appears that Mr. Cox learned of the land being for sale through conversations had with the defendant and Mr. Schlotfeldt in Grand Island on February 19, 1886. It was then arranged that Mr. Schlotfeldt should, the next day, drive Mr. Cox out to see the land, which he did. On the way out they met the plaintiff, who was then residing on the land, and Mr. Cox was introduced to 'him, and
The first error assigned arises upon the exclusion of certain testimony offered by the plaintiff. On his behalf Levi Cox, the purchaser of the farm, was sworn. Near the close of the direct examination of the witness, and after he had minutely detailed all the facts in connection with the exchange of the properties, substantially as already stated in this opinion, he was asked by plaintiff’s counsel to state from whom he purchased the farm, and upon whose representations he relied in making the same. To the question the defendant objected as being irrelevant, incompetent, and immaterial, and calling for the opinion of the witness, which objection was sustained by the court. We are unable to see any error in the ruling. The question is clearly incompetent as calling for the conclusion of the witness upon a material issue in the case, which it was the province of the jury to determine. It was for the jury to say, from all the facts and circumstances proven, under proper instructions, whether or not Mr. Cox exchanged for the farm through plaintiff’s instrumentality.
It is finally insisted that the court erred in giving the fourth instruction, which reads: “ If you find from the evidence that the defendant employed the plaintiff to sell
Affirmed.