102 A. 584 | Conn. | 1917
The first reason of appeal does not comply with the rules, because it assigns as error that the court charged the jury as to certain particulars "as set forth in paragraph 9 of the finding," which paragraph contains the whole charge.
The second and only other reason of appeal is confined *260 by reference to that portion of the charge above quoted, and brings up the single question whether the court erred in charging the jury "that plaintiff was under no burden to prove there was no specific agreement as to his commission, and that the burden of proof was upon the defendant to disprove plaintiff's allegations."
This paraphrase does not quite do justice to the charge of the court, but it effectually limits the assignment of error to that part of it which charges that the burden of proving there was no specific agreement was not on the plaintiff, and the burden of proving there was a specific agreement was on the defendant.
Upon the findings as to the claims actually made by the defendant at the trial, the charge was correct.
The fact of employment and of the rendition of services leading to the sale of the property having been admitted by the defendant's answer, the plaintiff offered evidence to prove that his services were rendered without any agreement as to the amount of compensation, and that the usual commission in such cases was two per cent. He thus made out a prima facie case.
The important fact is that the defendant did not deny in toto that the plaintiff's services were rendered without any agreement as to compensation, but limited himself to the claim that "before he signed the contract Exhibit A [which is the written contract for the sale of the property], and before he accepted the offer of the customers obtained by plaintiff, and before plaintiff produced any customer ready and willing to purchase the property on terms acceptable to him," the defendant told the plaintiff that he would pay only one per cent commission, and the plaintiff agreed to accept it.
The plaintiff, in rebuttal, claimed that nothing was said about paying only one per cent until after the contract, Exhibit A, was signed. *261
The defense thus outlined is not necessarily inconsistent with the plaintiff's prima facie case, for it does not deny that the original contract of employment was silent as to terms of compensation, but alleges that at some time not definitely fixed, except by reference to the fact that Exhibit A was executed June 9th, 1916, an express agreement for one per cent commission was entered into.
The court in summing up the defendant's testimony fixes the claimed date of this alleged agreement as follows: "You will recall that the defendant testified that the specific agreement as to price was entered into June 9, 1916, at ten minutes to eleven, as he and the plaintiff left the door of Carpenter and Company, on Center Street, before they went to Mr. Notkins' office to see if an arrangement as to terms might be made whereby Mr. Lacy might get some cash out of the transaction, and that it was then and there that the plaintiff agreed to accept one per cent provided the deal went through."
That is to say, the defendant's actual claim was that the alleged agreement for $1,250 compensation was entered into on the morning of the day when the contract of sale was executed and on the way to the office of the purchasers for the purpose of arranging the final terms of a purchase already under consideration; and necessarily, therefore, after the plaintiff had at least begun to render services under the original contract of employment.
This statement by the court does not import verity, but it is fair to assume that, if materially inaccurate, it would not have passed unchallenged. It is consistent with the formal statement of defendant's claim in the finding, and the finding, when interpreted in the light of this part of the charge, explains more satisfactorily than before the ambiguity in the defendant's *262 answer, and brings out more clearly than before the fact that the real defense alleged in the answer and actually litigated is not an argumentative denial that the original contract of employment was for a reasonable compensation, but an affirmative defense by way of confession and avoidance, alleging that the parties afterward agreed upon a one per cent commission.
Such being the real nature of the defense, the burden of proof remained on the plaintiff throughout the case of proving by a fair preponderance of all the evidence that at the time of the original employment the parties were silent as to the amount of his commission; and since the defendant made no attempt to prove an express agreement for one per cent commission at the time of the original employment, but claimed that the implied promise arising from the silence of the parties was superseded by a subsequent express agreement, the burden of proof was on him to establish such a modification of the original contract.
The charge of the court is in substantial accord with the views above expressed.
There is no error.
In this opinion the other judges concurred.