Olson v. Cremer ( 1890 )

Mitchell, J.

We think that appellants’ counsel may have been somewhat misled by the trial judge’s memorandum, to which, rather than the record, his argument seems directed. The case turns upon the state of the evidence rather than upon what is admitted in the pleadings. The undisputed evidence is that plaintiff had a general agreement with Cremer, who was engaged in the real-estate agency business, that he should have half the commissions on all sales of property listed in Cremer’s office for which he procured the purchasers ; that subsequently Hammer came into the business as a partner of Cremer; that thereupon, and before the sale in question was closed, plaintiff had an understanding with Hammer that the previous arrangement with Cremer was to be continued with the firm of Cremer & Hammer; that plaintiff found a purchaser to whom a piece of property was sold after Hammer became a member of the firm, and on which the firm received a commission of $650. Defendants did not offer any evidence to controvert any of these facts. Upon this state of the evidence, the court correctly instructed the jury that the only issue was whether plaintiff had accepted from defendants a certain due-bill in full settlement for his share of the commission. Upon the evidence, this was fairly a question for the jury.

Judgment affirmed.