145 Ky. 146 | Ky. Ct. App. | 1911
Opinion op the Court by
Reversing.
The plaintiff, H. E. Rustenholtz, brought this action against Samuel T. Castleman to recover $20 borrowed money and $475 balance due as commissions on the sale of International Recording Company stock. In para
The errors relied upon are (1) the failure of the court to award defendant a peremptory instruction, and (2) the failure of the court to properly instruct the jury.
Plaintiff testifies to the fact that the defendant borrowed the $20 from him and that it had never been paid. The defendant had no recollection whatever of the trans
As to the Wigginton item, it appears that plaintiff did sell certain shares of stock to him. The defendant, however, produced a check for $46.80, payable to plaintiff, which plaintiff had cashed. In the body of the check was the following: “For Commission on Wiggonton.” Plaintiff admits that he received and cashed this check, but claims that he made other sales to Wiggonton, and that the check must have been given in payment for commissions on these sales, and not for commissions on the transaction sued' on. With the evidence in this shape, the Wiggonton item was properly submitted to the jury.
Concerning the commissions on sales to Owens, it is the contention of defendant that he employed plaintiff to sell only about $3,000 shares of the stock in question, and that Owens bought these shares through the agency of plaintiff. The commissions on these sales were fully paid. The first sale was of 1,000 shares, and plaintiff admits he received $50.' The second salé -of 2,333 shares was made the next day. Defendant produces a cheek for $95 payable to plaintiff vs order and indorsed by him, showing that he received the money. In addition to this the defendant testifies that the balance due, $5, was retained by him in payment'of a loan which he had made to plaintiff. As to these items, it not being shown that the check was given for any other purpose, we think the plea of payment was fully made out, and that the question of commissions due for the sale of the 3,000 shares to Owens should not have been submitted to the jury.
As to the remaining 7,000 shares of stock, it is defendant’s claim that he never employed plaintiff to .make the sale, but, bn the contrary, he himself made the s.ale to Owens several weeks after the first transaction. In this connection it is insisted that plaintiff failed to show that he was defendant’s 'agent,' or that his efforts were the procuring cause of the sale. It is admitted that plaintiff was not present when thé last sale was made to Owens; so his case rests entirely upon the terms of his employment. Plaintiff testifies that Castleman called him to his office and told him he had several thousand
The court instructed the jury as follows:
“1. If you believe from the evidence that the plaintiff, H. E. Rustenholtz, loaned the money and performed the services for which he claims compensation in this action, you will find for the plaintiff on such sums as. you find for him, unless you believe from the evidence that the sums have been paid by the defendant, or unless you believe that the services were not rendered.
2. If you find from the evidence that the money was not loaned or the services were not rendered, or if you find from the evidence that the defendant, has paid those items, then as to such items you will find'for the defendant.”, ..
, Judgment reversed and cause remanded for a new trial consistent with this opinion.