Walpole v. Weeks , 45 S.D. 590 ( 1922 )

GATES, P. J.

Action for broker’s commission on the sale of real estate. Verdict and judgment for plaintiff. New trial denied. Defendant appeals.

The evidence on the part of respondent tends to show that appellant promised to pay respondent $i per acre commission if he found a purchaser of his ranch at $30 per acre, and in addition, to pay respondent one-half of the excess above $30; that if a purchaser was found respondent should notify appellant’s daughter, Mrs. Sherwood, as appellant expected to be away from Tiome; that respondent took one Munn out to see the ranch, and listed it at $36 per acre; that respondent notified Mrs. Sherwood, and. advised her as to the closing of the deal with Munn, and that a contract of sale was entered into by Munn and Mrs. Sherwood at $33 per acre; that- appellant later approved- the contract and signed the same, received $500 of' the purchase price, and that Munn went into possession of the premises, and was in possession at the time of the trial. These recited facts show without question that respondent was entitled to recover a commission in accordance with the terms of the agreement.

Appellant’s first assignment of error relates to the admission of conversations that took place between respondent and Mrs. Sherwood. The precise point is that under the evidence as it stood when such evidence was received it was not shown that Mrs. Sherwood was authorized to act for her father in making: the contract; that the direction by appellant to notify his daughter did not justify the receipt of such evidence. Appellant’s contention in reality only goes to the order of proof, which, as has been frequently pointed out, is within the sound discretion of the trial court. The subsequent proof that appellant ratified the contract made by his daughter rendered such testimony admissible.

Appellant next complains of the rejection of offers of proof to show that the contract with Munn was placed in escrow in a bank to. he delivered upon compliance with its terms by Munn, and that such provisions were not complied with. The offers were irrelevant to the issue. When appellant signed the contract, received the $500, and put Munn in possession, respondent had earned his commission. Minder & Jorgenson Nand Co. v. Brustuen, 26 S. D. 38, 127 N. W. 546.

These two points contended for by appellant are the basis of most of the remaining assignments of error. All of the assignments have been considered and are without merit.

The judgment and order appealed from are affirmed.