delivered the opinion of the court.
*174 Wе shall refer to the parties to this action either by name or as they appeared in the trial court, where defendant in error was plaintiff and plaintiff in error was defendant.
Plaintiff, a licensed business chance broker, alleged in his complaint that on June 23, 1949 he and defendant entered into an exclusive net listing contract to sell, and an option to purchase, defendant’s liquor store for $19,000, which written contract was to continue for thirty days from date, аnd subsequent to that time, until the expiration of fifteen days after written notice by defendant that the contract was terminated. The contract contained a provision for a ten per cent commission to be paid plаintiff on the gross sale price of said property, if during the life of the contract a sale thereof was effected by plaintiff, defendant, or any other person. Plaintiff further alleged that no written notice of termination of the contract was given following the expiration of the thirty-day period, and that on November 7, 1949 defendant sold said liquor store to Timothy Ahern and Margaret Ahern for $19,000. Plaintiff demanded judgment for $1,900.
Defendant’s answer contained a general dеnial, a separate defense that the contract sued upon was without consideration; that plaintiff did nothing to perform said contract; that by mutual consent, after the expiration of the thirty-day period, the contraсt was terminated; that the sale of November 7, 1949 was consummated by another broker who produced said purchasers, and to whom defendant had paid a commission for making the sale.
The contract in question was signed by defendant and witnessed by Tom R. Wheeler and Ben Bohm, agents of plaintiff, who procured its execution.
Upon the trial it appeared that plaintiff had inserted notices in the classified section of Denver papers advertising defendant’s liquor store, without specifically designating the location thereof. Evidence that the sales price, *175 when the property was sold to the Aherns, was $16,500, was undisputed. Trial was to a jury. Upon completion of the evidence, рlaintiff moved for a directed verdict in his favor, which motion was denied. The verdict returned by the jury was in favor of the defendant, and upon its receipt plaintiff’s counsel asked for twenty days within which to file a motion for new trial. This request was grаnted, and within the allotted time counsel for plaintiff filed a “motion for directed verdict or for a new trial.” The trial court on February 23, 1951 ordered “that a directed verdict be and the same is hereby entered herein in favor of the plaintiff and against the defendant Samuel D. Singer in the amount of $1,650,” together with interest and costs. To have this judgment reviewed, defendant brings the cause here, specifying as error the action of the trial court in setting aside the jury verdict and entering judgment for plaintiff.
That plaintiff advertised the defendant’s store for sale after the agency was created is not in dispute. Defendant strenuously insisted that after the thirty-day period expired the contract of agency was, by mutual consent, abandoned; that he verbally informed plaintiff’s representative that “they were through with the listing and that he would try to sell the place” himself. He testified on the trial that plaintiff brought no prospects to his store, and abandoned his efforts to sell after this verbal notification. In relating a conversation with plaintiff’s witness Wheeler, after the sale to the Aherns was completed and suit was threatened, defendant in his testimony quoted Wheeler as saying “we feel that you are still bound under the contract and we want the commission.” Defendant contended he made the following reply: “How can I be bound on the contract when the contract has expired under the agreement we hаd?” To which inquiry plaintiff said. Wheeler answered: “Well, as far as I am concerned, that’s right, but this is something the boss insists upon.”
At other places in the record we find the following *176 testimony by defendant: “They [referring to plaintiff] were out of the picture”; and again, we find this evidence on the part of defendant: “Q. Why didn’t you call Chit-wood and Company and tell them that you would sell for less than $19,000.00? A. Well, they were no longer representing me. They didn’t seem interested enough even during the entire 30 days to so much as come up and pay a social call or even to talk to me about it. At the end of 30 days I figured I had just wasted 30 days. Q. Did you so inform them? A. That’s right. Q. Whom did you inform? A. Mr. Wheeler. Q. Did Mr. Wheeler or Mr. Bohn ever introduce you to Jack H. Chitwood? A. No, never. Q. Did you ever contact Jack H. Chitwood as far as you know, Mr. Singer? A. As far as I know, no.”
Wheeler and Bohn were the only representatives of plaintiff with whom defendant dealt at any time and plaintiff’s only witnesses. They solicited the contract and at all times acted in behalf of plаintiff. When suit was threatened, defendant contacted Wheeler and on the trial he testified regarding the conversation with him as above recited. Mr. Chitwood was not called as a witness.
Plaintiff’s motion for a directed verdict was based on the contention that there was no evidence that plaintiff had assented or agreed to any termination of the contract of agency.
A careful study of the entire record convinces us that there was evidenсe on behalf of defendant sufficient to warrant a submission of the case to the jury under proper instructions concerning its evaluation by that body. In a case of this nature the witnesses are few in number. In the instant proceeding defеndant sought to elicit from the witnesses Wheeler and Bohn, certain facts and admissions concerning which defendant testified; defendant’s counsel hqd considerable difficulty in getting direct answers to these questions, and in a number of instances the record shows that the witness did not answer at all. The record is replete with objections made *177 by counsel for plaintiff and defendant, and some of these objections interrupted answers by witnesses and prevented the witness being еxamined from fully answering the question propounded. Considering the record as made we are convinced that the trial judge was correct in his ruling, when he determined that the motion for a directed verdict in favor of plaintiff should be оverruled. The trial court erred in granting the last motion for a directed verdict and entering judgment for plaintiff.
In
Gossard v. Watson,
The result of setting aside a verdict, and the event of directing one, are entirely different and are not controlled by the same conditions or circumstances. The matter of a retrial of the issue rests, within limitations, in the discretion of the trial court. The matter of a directed verdict rests upon legal right.
The applicable rule governing the direction of a verdict is identical with the rule controlling a motion for a nonsuit (prior to the adoption of our rules of civil procedure). In
Frank Meline Co. v. Kleinberger,
Our rule 50 R.C.P. Colorado is substantially the same as rule 50 of the federal rules. The situation presented in the instant case was considered in
Pruitt v. Hardware Dealers Mut. Fire Ins. Co.
(Fifth Cir.) 112 F. (2d) 140, where this significant language appears: “It follows that the judgment for the defendant notwithstanding the verdict ought not to have been entered and must be reversed. Appellants thereupon contend that we should order a judgment entered on the verdict, as was done in Duncan v. Montgomery Ward & Co. 8 Cir.,
See, also,
H. H. Wallower, Jr. v. Dave Elder, doing business as The Colorado Machiney and Supply Company,
Such being our holding, we do not deem it necessary to consider the cross specifications of error filed by defendant in error.
The judgment in favor of defendant in error is *180 reversed, and the cause remanded with instructions to the district judge to pass upon the motion for a new trial.