Harriott v. Holmes

• Decision Date: 12 July 1899
• Docket Number: 11,572 - (172)
• Citation: 79 N.W. 1003,77 Minn. 245
• Parties: E. E. HARRIOTT v. C. L. HOLMES
• Court: Minnesota Supreme Court

79 N.W. 1003

77 Minn. 245

E. E. HARRIOTT v. C. L. HOLMES

Nos. 11,572 - (172)

Supreme Court of Minnesota

July 12, 1899

Action in the district court for Redwood county to recover the amount of a broker's commission. The case was tried before Webber, J., and a jury, which rendered a verdict in favor of plaintiff; and from an order denying a motion for a new trial, defendant appealed. Reversed.

SYLLABUS

Broker's Commission -- Charge to Jury -- Interest of Witness in Result.

Action to recover a broker's commission of $390 for making a sale of real estate by plaintiff's assignor for the defendant. The trial court instructed the jury that, in weighing the testimony of the defendant, they had a right to take into consideration the great interest which he naturally felt in the result of the suit, and the strong temptation which he naturally felt to give evidence favorable to himself. Held, that the giving of the instruction was prejudicial error, in view of the particular circumstances of this case.

D. A Stuart, for appellant.

E. E Harriott, pro se.

OPINION

START, C.J.

Action by the plaintiff, as the assignee of O. L. Dornberg, to recover a broker's commission, in the sum of $390, for making sale of certain real estate for the defendant. Verdict for the plaintiff for the amount claimed, and the defendant appealed from an order denying his motion for a new trial.

The allegations of the complaint are to the effect: That O. L. Dornberg and the defendant entered into a written contract whereby the latter employed and authorized the former to sell, and find a purchaser for, a tract of land owned by the defendant, containing 640 acres, on the following terms:

"$22.00 an acre. Payments: $2,500 down; $1,500 Nov. 1, 1898; balance on equal payments, not to exceed two. The purchaser to assume the mortgage. Price and terms subject to change. Commission to remain the same. I agree to furnish a complete and merchantable abstract, and perfect title, with all taxes paid, and agree to pay you five per cent. commission as soon as sale is made, or, if sold within the specified time, will accept $13,376 net for same on the terms stated."

That Dornberg, pursuant to the contract, procured a purchaser for 400 acres of the land at the price of $7,800, and that the defendant accepted his services in making such sale, and accepted and ratified the terms thereof, in writing. That by the terms of the contract the defendant promised to pay Dornberg for making such sale, as soon as made, a commission of five per cent. on the purchase price, which has not been paid, and that his claim therefor has been duly assigned to the plaintiff. The answer denied that Dornberg procured a purchaser for the land pursuant to the contract. It alleged that the signature of the defendant to the ratification of a proposed purchase and sale of a part of the land was procured by fraud. This was the important issue on the trial, and Dornberg, on behalf of the plaintiff, and the defendant, for himself, were the principal witnesses thereon. Their testimony was radically conflicting. The plaintiff was not called as a witness, as he necessarily was obliged to rely upon his assignor, Dornberg, to establish his cause of action.

The trial court instructed the jury that, in weighing the evidence of the different witnesses, the jury had a right to take into consideration the interest which any witness had in the result of the suit, if any such appeared, and then gave to them this further instruction:

"Under the laws of this state, the parties to a civil action have a right to be sworn as witnesses, and to give evidence in their own behalf, and one of the parties to this action has availed himself of this right, and has been sworn as a witness, and has given...