Corbel v. Beard

Oct 24, 1894
Reporters:
,
Before:
Given
Given, J.

1 I. The court instructed that defendants had the right to withdraw the offer contained in their letter, and that, if they did so, and plaintiff was so notified by them or their agent before he made the sale he claims to have made, he can not recover under said contract for making such alleged sale. The court further instructed as follows: “(3) In order to justify a verdict for the plaintiff in this action, it must appear from the evidence before you that before any notice to plaintiff from the defendants, or on their behalf, that said defendants had withdrawn said offer as contained in said letter, the said plaintiff had produced a purchaser ready to take the land in question at the price and on the terms mentioned in said letter. (4) The letter written by defendants on May 10, 1892, by virtue of which the plaintiff claims to have made the sale, provided that two thousand, five hundred dollars of the purchase price should be paid down and one thousand, five hundred dollars within one year, and the balance on any time the purchaser might want. The sale actually consummated did not fully comply with these terms. If plaintiff, on or about August 25, 1892, brought the defendants a party who was ready and willing to take such land upon the terms mentioned in said letter, and, if a different contract was made between said defendants and said purchaser, either for the convenience of said defendants or voluntarily on their part, when théy had been informed and knew that said purchaser was ready and willing to take said land upon the terms and at the piice mentioned in said letter, then the fact that the contract finally made on August 25, 1892, did not fully comply with the provisions of said letter, is no *363defense to this action. But if, on the other hand, the delay in the payment of said two thousand, five hundred dollars from August 25 to October 3 was because the party produced by plaintiff was not prepared sooner to pay said money, then plaintiff has not complied with said contract, and is not entitled to recover in this action.” Appellant complains of the refusal to give the following instructions: “(1) By the undisputed evidence it is shown the lands in’ question were not sold by plaintiff upon the terms at which plaintiff, even by the terms of the contract he claims under, was authorized to sell on, and you must find for defendant.” The first instruction asked was properly refused. There was evidence tending to show that plaintiff had sold lands to Anton Jarosh upon the terms authorized, and that defendants had accepted Jarosh as a purchaser. The substance of the second instruction refused is fully covered by the third given by the court, and which appellant concedes “was correct law.” There was no error in refusing this instruction.

2 II. Defendants, in support of their allegation that they had withdrawn their offer to plaintiff, and had notified him thereof, offered to prove by the defendants that at some time in July, 1892, the defendant H. Beard started to write to plaintiff that the contract for the commission was off, and that his partner, the defendant L. W. Beard, “said that plaintiff already had notice, Cal had told him, and that defendant Beard had refrained from writing in consequence.” This was correctly excluded on plaintiff’s objection. Defendants could not establish their allegation by what they did and said in the absence of the plaintiff.

III. Appellants’ further complaints are against the refusal of the court to set aside the verdict. It is argued that the verdict is contrary to the third instruc*364tioix, but not so, we think. There is evidence tending to show that Jarosh was ready to take the land on the terms named in the letter to plaintiff. Under the evidence it was a question for the jury, and upon which they might properly find as they did. The same is true as to the question whether defendants had withdrawn their offer, and had notified plaintiff thereof. We find no error in the record. The case was very fully and fairly submitted to the jury. The verdict is supported by the evidence, and the judgment of the district court is affirmed.