DuPerow v. Groomes ( 1914 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. It was error to permit this memorandum to be offered in evidence. It was not used, nor was it necessary to be used, by plaintiff to refresh his memory. Gurley v. MacLennan, 17 App. D. C. 170, 179; Sechrist v. Atkinson, 31 App. D. C. 1, 5; Rudd v. Buxton, 41 App. D. C. 353.

2. It is unimportant to consider the other assignments of error relating to exceptions to evidence and to instructions given and refused.

The burden was upon the plaintiff to establish his case.

It was necessary to show that he had been employed to sell, or find a purchaser for, the lot, and that he was the procuring cause of the sale to such person. Moore & Mill v. Breuninger, 34 App. D. C. 86, 91. If plaintiff was employed to sell the lot, found a purchaser, and brought him and the owner together, the owner could not, by concluding the. sale himself, defeat the right of plaintiff to his commission. Bryan v. Abert, 3 App. D. C. 180, 187; Sechrist v. Atkinson, 31 App. D. C. 1, 5; Moore & Mill v. Breuninger, supra.

So, on the other hand, if the plaintiff did not bring the defendant and Jansen together, but abandoned his effort to do so before they got together and made the purchase and sale, he would not be entitled to recover.

The judgment is reversed with costs, and a new trial ordered.

Reversed.