This action was brought by the plaintiff to recover of defendant the sum of .$1,100, which he claimed to be due him from defendant. Plaintiff claimed he entered into a contract with defendant under and by virtue of which defendant listed with him, to find a purchaser, 8oo acres of land in Pennington county, S'. D.; that afterwards he found a purchaser for said lands ready, able, and willing to purchase the same in accordance with the terms fixed by the defendant; and that under the terms of said .contract he was entitled to said $i,ioo. The cause was tried to the court with a jury, and verdict and judgment having been entered therein in favor of plaintiff, and a new trial having been denied, the defendant appealed to this.court from said judgment and order denying a new trial.
Appellant, in his brief, contends that the evidence was not 'sufficient to support the verdict, and that, for that reason, defendant’s motion made at the close of all the evidence (in which said motion the appellant asked for an instructed verdict) should have been sustained. Appellant, in his discussion, calls attention to numerous points wherein he contends that the evidence fails to show that the alleged purchaser was ready, able, and willing to purchase the property upon the terms fixed by the appellant; and appellant claims that the evidence clearly shows the terms entered into by respondent with such alleged purchaser varied materially from the terms fixed by appellant. A serious question would be presented under the evidence herein providing the record was in condition to require our determination of the same. In appellant’s brief there is no reference whatever to any assignment as to insufficiency of the evidence, which assignment it is claimed presented to the trial court for determination the question now raised; the only claim of appellant being that the following words (found in a long paragraph stating appellant’s grounds of motion for directed verdict) are sufficient to present the error now claimed, to-wit: “That the evidence does not disclose nor establish the fact that plaintiff found a purchaser who was willing and able to pay any price for the land.” Inasmuch as the evidence showed beyond dispute that a purchaser was found, who entered into a written contract to pay, half in cash and half by secured notes, more than the price which the jury must have found appellant agreed to sell the land for, it will readily be seen that there was nothing to support this part of the motion for directed verdict; and it-needs no argument to show that such statement made to the trial court was insufficient to call such court’s attention to any variation as to the terms of payment between the instructions given respondent by appellant and the terms agreed upon by respondent with the prospective purchaser.
Appellant complains of certain instructions given the jury, and alleges: “The particular vice of these instructions is that the court assumed that the evidence established a contract between
The judgment and order denying new trial are therefore affirmed.