Tennison v. Dreifus

HAMILTON, PJ.

Alfred F. Tennison brought suit against Charles I. Dreifus for commission claimed to have been earned in the sale of real estate. At close of plaintiff’s testimony defendant moved for a directed verdict. The court in sustaining the motion said, “The evidence discloses beyond a question of doubt in the Court’s mind that the plaintiff in this case abandoned the contract and instead of demanding his commission from Dreifus, he gave Tusch (the purchaser) $25 to release the contract and kept the $75 and immediately proceeded to secure other purchasers and to attempt to enter into another contract with this defendant,” etc.

Error was prosecuted and the Court of Appeals held:—

1. Plaintiff’s testimony and exhibits present some evidence tending to establish his claim to recover.

2. The Court in passing upon the motion for a directed verdict made a statement to the effect that the evidence “discloses beyond a question of doubt in the court’s mind that plaintiff in this case abandoned the contract,” etc.

3. The jury might or might not agree with the court as to the evidence, and the case should have been submitted to it.

Judgment reversed and cause remanded.

(Cushing and Buchwalter, JJ., concur).