Crawford v. Wittish

Opinion by

Smith, J.,

The controversy in this case involved questions of fact which were determined by the jury in favor of the plaintiff. Whether the defendants were partners in effecting certain sales of real estate owned by the heirs of John Birmingham, deceased, and, if so, whether they had entered into an agreement with the plaintiff whereby he became entitled to one third of the commissions accruing from these sales, were essentially questions of fact for the jury, and were submitted by the learned trial judge in a careful charge that covered in a general way the important aspects of the case, without special requests by either party. In the absence of points calling for specific instructions, or asking the court to rule upon the effect of the whole testimony, it is now too late to complain of any omission in the charge concerning particular phases of the evidence.

The plaintiff testified that Wittish, representing himself as a partner of Graebing, agreed that the plaintiff should have for his services one third of the commissions coming to the defendants from the sales of the Birmingham lands. He also referred to subsequent interviews with the defendants respecting the property, and the services which he claimed to have rendered the defendants in the project. He was corroborated as to the existence of tbe partnership by Mr. Hendrie, the executor of the Birmingham estate, who, at the plaintiff’s request, had placed the property in charge of the defendants for sale. Mr. Hendrie testified that each of the defendants sold parts of the property, and that in January, when he paid Graebing $500 on account of commissions, the latter said he would withhold Wittish’s share until he accounted for money received by him in another joint transaction. He further testified that Graebing also then said “ if Wittish should ask anything about the commissions, just tell him the commissions will be settled at. the first of April.” This testimony of Mr. Hendrie is not contradicted by either of the defendants, although both of them were sworn as witnesses and denied that they had made any agreement with the plaintiff as he alleged.

With this conflicting testimony it would have been error on the part of the trial judge to withdraw the case from the jury. Viewing the evidence as a whole, the contention that the plaintiff’s side only was presented is unwarranted. Although the charge was general in terms, it was well adapted to the issues raised, without special reference to the testimony of either side.

There is no error disclosed by the record, and the judgment is therefore affirmed.