102 Mich. 59 | Mich. | 1894
Plaintiff sued to recover a commission on a sale of real estate. The circuit judge directed a verdict for the defendant, and plaintiff brings error, alleging that the circuit judge committed error — First, in excluding testimony of plaintiff as to how much money he had expended in advertising the property; second, in admitting testimony of defendant that he had placed the property in the hands of other brokers; third, in directing a verdict for the defendant.
1. It was not error to exclude testimony as to expenditures made by plaintiff in advertising. Neither the pleadings, nor the plaintiff’s version of the contract of employment, left the case open for any claim under the quantum meruit.
2. While we think the testimony of the defendant as to his having placed the property in the hands of other brokers immaterial, it is apparent that the error in the admission of such testimony resulted in no injury to the plaintiff, if the court was right in holding that there was no case made for the jury.
3. The only question which requires extended discussion is whether the circuit judge should have submitted the case to the jury.
The declaration contained three special counts. In the first it was alleged in substance that defendant employed plaintiff as broker to effect, on behalf of said defendant,
The second count averred that defendant employed plaintiff at the agreed price of $1,000 to furnish a purchaser at a price satisfactory to defendant, and alleged that the purchaser and defendant were brought together by plaintiff’s efforts, and a sale at a price satisfactory to defendant was made, and claimed the agreed compensation.
The third count was the same in substance as the second, except that it averred that plaintiff’s employment was at a reasonable commission.
There were appended the common counts, and a bill of
Under the state of the pleadings, we think the only question for trial was whether the plaintiff did in fact procure a purchaser, either at $20,000 or at a price satisfactory to the defendant. Each count avers that the purchaser was procured by the plaintiff, and there is no averment of any special damage for withdrawing the property from plaintiff's hands, excépt as it is averred that plaintiff produced Osborn as a purchaser, and that defendant availed himself of plaintiff's efforts. There is no averment in the first count of the declaration that the plaintiff was to have the exclusive sale of the property, and the plaintiff's own testimony shows that defendant was authorized to sell if he should himself get a purchaser for the property. This count alleges that defendant's wrong consisted in selling to a customer with whom plaintiff himself was at the time in negotiation. But this averment of the declaration is refuted by the undisputed testimony in the case. The plaintiff testified that defendant agreed to place the property in plaintiff’s hands, fixed his price at $20,000, and agreed that if plaintiff succeeded in selling at $20,000 he was to have $1,000 commission for the sale; that defendant agreed to place the property in his hands exclusively and absolutely, with the reservation that, if he himself succeeded in finding a purchaser, he (defendant) would first notify plaintiff to bring in any customer that he had, before withdrawing the property. Plaintiff also testified that he agreed to use his best efforts; that he entered into negotiations with one Eyfe for a sale of the property, and that Eyfe, after considering the matter, declined to buy, but referred him to his partner, Mark B. Stevens, and introduced him to him as a possible purchaser; that Stevens looked into the matter, and stated
The judgment will be affirmed, with costs.