Douglas v. Matzner, 6768.

• Decision Date: 16 April 1930
• Docket Number: No. 6768.,6768.
• Citation: 149 A. 861
• Parties: DOUGLAS v. MATZNER.
• Court: Rhode Island Supreme Court

149 A. 861

DOUGLAS

v. MATZNER.

No. 6768.

Supreme Court of Rhode Island.

April 16, 1930.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Presiding Justice.

Action of assumpsit by Charles Douglas against Henry Matzner. At close of plaintiff's evidence, defendant's motion for nonsuit was granted, and plaintiff brings exception.

Exception sustained, and case remitted for new trial.

George Helford, of Providence, for plaintiff.

Max Winograd, of Providence, for defendant.

STEARNS, C. J.

This is an action of assumpsit to recover a broker's commission. On motion of defendant, at the conclusion of plaintiff's evidence in a trial by jury, plaintiff was nonsuited. The case is in this court on the exception of plaintiff to the granting of the nonsuit.

The declaration charges that defendant engaged plaintiff, a real estate broker, to sell a lot of land and two houses, which defendant owned, for a fixed price of $30,000, and agreed to pay him a commission of 3 per cent. of the selling price "if he should succeed in finding a purchaser for said property"; that plaintiff did secure a purchaser who was ready, willing, and able to purchase the property at the price fixed, wherefore plaintiff sues to recover the agreed commission.

The testimony which was brief was given by three witnesses, the plaintiff, one Samuel Labush, the proposed purchaser, and the defendant. On a motion for nonsuit, the evidence is to be considered in any reasonable way which is most favorable to the plaintiff. The weight of the evidence is not a relevant consideration. If there is some evidence to support plaintiff's case, a nonsuit is improper.

In the case at bar, there is evidence of these facts. In response to a telephone call, plaintiff went to defendant's home; the defendant told him that he wanted to sell his real estate and, after some talk about its value and the amount of the rents, defendant said he would sell for $30,000, and would give plaintiff the usual broker's commission of 3 per cent. if he procured a purchaser. Plaintiff at once advertised the property for sale in the newspapers. Samuel Labush saw the advertisement and requested plaintiff to call upon him. When informed by plaintiff of the location of the property and the price, Labush said that he knew the property; that the price, $30,000, was satisfactory, and that he would buy it. When defendant was told by plaintiff of the success of his efforts and given the name of the purchaser, defendant told plaintiff he had known Labush for years and that in a few days he would carry through the transaction. At a second interview, defendant complained to plaintiff that he was earning his commission too easily and tried to induce him to agree to take less. This, plaintiff refused to do. Defendant subsequently tried to put the sale through by another agent who was to work for a smaller commission, but Labush refused to deal with this agent, or to pay any larger price.

The defendant, who was called by plaintiff as a witness, was asked only a few questions about the number and amount of the mortgages on his property. He was unable to tell the exact amount, and said the total amount of the two mortgages was about $20,000 or $22,000.

Labush testified that he was ready, willing, and able to...