69 A.2d 865 | N.H. | 1949
Whether the plaintiff was the effective cause of the sale of the defendant's property (Williams v. Walker,
The testimony was erroneously excluded. The fact that conversations occurred between the plaintiff and Beaudoin had no probative value unless the conversations were shown to relate to the sale of the defendant's property. "Until the words are taken into consideration, the desired significance cannot be attributed to the wordless conduct." 6 Wig. Ev. (3rd ed.) s. 1772. Since the conversation was relevant irrespective of the truth of what was said, the hearsay rule would not operate to exclude the testimony. Ib. The evidence "had some tendency to show that the plaintiffs were the efficient cause of the exchange of the properties, and was not inadmissible as hearsay. Where, as here, the fact in issue is whether the plaintiffs were the efficient cause of the exchange, the conversations [between plaintiffs and purchasers] were direct and primary evidence on that issue." Glassman v. Barron,
Although there was error, it cannot reasonably be found to have been prejudicial. The fact, as well as the subject matter of the conversations appeared through other testimony received without *63 objection. The plaintiff testified that he talked to Beaudoin about "the camp" "every chance I'd get," and that Beaudoin told him that "if it's what you say it is . . . I'll buy it." Beaudoin, called by the defendants, testified that he and the plaintiff were employed in the same plant and that the latter utilized the opportunity to talk to him frequently about the property, describing it in detail. There was thus no dispute over the fact that the conversations between the plaintiff and the purchaser with respect to the defendant's property did occur. So far as the plaintiff's offer of proof discloses, the excluded testimony would have served merely to partially confirm the undisputed testimony which was received. In the erroneous exclusion no prejudice is apparent.
The plaintiff sought through his own testimony and that of other real estate broker to establish that trade usage or practice required payment of a commission when an owner sells property to purchaser obtained by a broker, at a price tower than that at which the broker is authorized to sell. The evidence was offered upon the ground that "it isn't just a matter of law, that it's a matter of practice in the sale of real estate." It was excluded as immaterial, subject to exception. There was no evidence that the alleged practice was known to the defendants or that it was so prevalent as to make them chargeable with constructive knowledge of it. See Stimson v. Jackson,
The testimony of the defendant husband, warranted a finding that there was no undertaking to pay a commission except as the sale price should exceed $6,000. If this were found to be the contract of the parties, application of the usage was excluded by express terms of the contract. Restatement, Contracts, s. 247, comment d; Sumner v. Tyson,
The motion to set aside the verdict presents issues which need no restatement. Wisutskie v. Malouin,
Judgment on the verdict.
LAMPRON, J., did not sit: the others concurred.