161 N.W. 809 | S.D. | 1917
Action to recover commissions for services in a land deal. Verdict and judgment for plaintiff. Defendant appeals. , Appellant ’ assigns as error: First, the overruling of objections to certain evidence; second, that the verdict is against the law as given in the instructions of the court; third, that there is no evidence which supports the verdict.
A statement of the issues raised 'by the pleadings will aid in the determination of appellant’s second- and third -contentions. The -complaint alleges:
‘‘That * :|: * defendant was the owner of a large amount of land, * * * which land he desired to trade or sell; * * * that plaintiff performed work and services for the defendant in and about the sale and trading of the land aforesaid,- which services were reasonably worth and of- the agreed price of $1,280; that no part thereof has been paid.”
The answer i-s a general .denial.
Appellant’s contention is that, under the instructions of the court, the jury were directed to find a verdict for plaintiff in the sum of $1,280, or to return a verdict for defendant; that such instruction, unexce-pted to, became the law of the case, whether erroneous or not, and therefore the verdict for $640 was against the law; that there was no evidence which would sustain the ver'dict. Certainly the issues raised by the pleadings would not warrant an instruction such as appellant claims was given, and it becomes the duty of the appellate court to examine the whole instructions. So far as material here, the instructions were as follows;
“Now, gentlemen of the jury, the very first thing you should do upon your retirement is to determine whether or not there was .a contract had, 'suoh a contract as claimed by the plaintiff in this case, such a contract as the two minds met and agreed on. That means the -particular property, the amount that would be received in compensation, and the time in which this work was to be performed. * * *
“Was that contract carried out, or was it carried out within a reasonable time, if there was a contract. * * * It is incumbent upon the plaintiff to prove b)r the preponderance of the testimony*435 the essence of the contract; that the contract was carried out;, that the plaintiff performed the work. You are instructed,, gentlemen of the jury, that the plaintiff is suing the defendant in the capacity of a real estate agent, to recover the sum of, $1,280 as real estate agent’s commission for selling or exchanging 1,280 acres of land for the defendant on a commission of $1 per acre. * * * You are instructed * * * that, if you find from the evidence that the defendant agreed to pay to the plaintiff the sum of $1 per acre for finding a purchaser for his lands, or a party to whom he should trade the same, and if you further find that she did procure for him a party to whom he subsequently traded the land, your verdict will be for the plaintiff for such amount as was agreed upon 'between the parties. * * * Now, gentlemen of the jury, as before stated, you take this evidence and weigh it and determine from it whether there was a contract. If there was a contract, did the plaintiff perform that contract within a reasonable length of time; if so, you will find for the plaintiff in such amount as you find the evidence shows her entitled to not exceeding the sum of $1,280.”
One Bailey owned the Nebraska lands. It is undisputed that it was through plaintiff's efforts that defendant and Bailey opened negotiations for a deal in lands. Two separate deals appear to have been consummated, one begun in the fall of 1912, in which defendant traded 640 acres of his own lands" for lands owned by Bailey, and which was closed in July, 1912; the other