Reich v. Workman , 110 Ark. 140 ( 1913 )

Hart, J.,

(after stating the facts). At the request of the defendant, the court instructed the jury as follows:

“1.. It is admitted that the defendant made the sale in question, and therefore your verdict will be for the defendant, unless you further find from a preponderance of the testimony that the plaintiff was instrumental in making the sale.”

“2. By ‘instrumental’ is meant the doing of something in connection with the sale by the plaintiff that was a direct moving cause of the sale being made.”

At the request of the plaintiff, and over the objection of the defendant, the court, among other instructions, gave the following:

“2. The fact that Potts and defendant Reich finally consummated the trade between.them will within itself not defeat plaintiff’s right to recover providing you believe that plaintiff’s action caused in any Avay that trade to be made.”

“3. The fact that plaintiff did' not notify the defendant that he was trying to sell to Potts is not a matter to be considered by you against him. The contract did not require such notification—the only question is, did the plaintiff cause the trade to be made in any way.”

The defendant assigns as error the action of the court in giving these instructions for the plaintiff.

No prejudice resulted to the defendant from the giving of instruction No. 3. He resided at Wagoner, Oklahoma, and the land he wished to sell was situated near Everton, Arkansas. It was not of any interest to him to know that Potts was the probable purchaser of the land; nor can it be said that he even suffered any injury from the fact that Workman did not state to him that Potts was interested in purchasing the land. In the case of Veasey v. Carson, 177 Mass. 117, 53 L. R. A. 241, the court held: “The concealment of the identity of the purchaser from his principal will not preclude a broker from recovering Ms commission on a sale of land, where it does not appear that there was anytMng in the facts or circumstances to render that fact of any importance to the seller.”

The contract between Workman and Reich did not preclude Reich from Mmself making the sale of the land, but the contract provided that Workman would be entitled to his commission, provided he was instrumental in maMng the sale.

Instruction No. 2, given at the request of the plaintiff, and assigned as error by the defendant, concludes with the clause: “Providing you believe that plaintiff’s action caused in any way that trade to be made.” The words “in any way,” as used in the instruction, refer to the means used by the plaintiff in securing Potts as a purchaser of the land, and do not mean that Workman was entitled to recover if he did anything whatever to interest Potts in the land. TMs is shown by the fact that the court defined the word “instrumental,” at the request of the defendant, to mean the doing of something in connection with the sale by the plaintiff that was a direct moving cause of the sale being made. The giving of this instruction at the request of the defendant shows that the court adopted this theory of the meaning of the contract, and if the defendant thought that the instructions complained of were in conflict with the meaning of the word “instrumental,” as defined at his request, he should have made a specific objection to the instructions complained of, and, doubtless, the court would have changed the phraseology of them to meet his objection.

It is finally urged by the defendant that the verdict is not supported by the evidence; but we do not agree with him in tMs contention. While the contract between Workman and Reich gave to the latter the right to make the sale himself, it was also provided that the former should be entitled to Ms commissions if he was instrumental in making the sale. The testimony shows that he took up the matter of selling the property to Potts and interested Mm in it. He endeavored to sell the property to Potts for the best price obtainable, but was unable to complete the sale himself. Afterward Reich completed the sale, but we think the testimony shows that Workman was instrumental in making the sale, or was the procuring cause of the sale, under Ms employment for that purpose, within the meaning of our previous decisions on the subject. Stiewel v. Lally, 89 Ark. 195; Branch v. Moore, 84 Ark. 462; Hunton v. Marshall 76 Ark. 375; Scott v. Patterson, 53 Ark. 49.

The judgment will therefore be affirmed.