Action by Lemuel G. Hoadley against the Savings Bank of Danbury. There was a judgment for plaintiff, and defendant appeals. Affirmed.
The finding of the trial court is as follows:
"(1) The plaintiff is, and for a number of years has been, a real-estate agent, doing business in the city of New Haven.
"(2) In December, 1897, John W. Bacon and James Osborne, the president and vice president, respectively, of the Savings Bank of Danbury, the defendant in this action, called at the office of the plaintiff, in New Haven, and placed the property then owned by said bank, and known as the 'Elliott House,' situated on the corner of Chapel and Olive streets, in said city of New Haven, in the plaintiff's hands for sale.
"(3) Both said Bacon and said Osborne were in the practice of visiting New Haven each week, from the time they placed said property in the hands of plaintiff for sale until early in the following February, when the property was sold to Mr. George H. Bishop, and on each of said visits called at the plaintiff's office to inquire as to the prospects of sale.
"(4) At the first or second visit of the said Bacon and Osborne to the plaintiff's office, in December, 1897, Mr. Bacon produced and read to the plaintiff a letter, dated some 18 months prior to that time, which letter contained an offer of some $38,000 for said property, made in behalf of one George H. Bishop, the party who became the purchaser of the property in the following February.
"(5) At the time of reading said letter, said Bacon or Osborne said to the plaintiff that said Bishop might be a possible purchaser, and requested the plaintiff to see him, and use his influence to induce him to buy the property.
"(6) The plaintiff then agreed to see Mr. Bishop in reference to the property, and did call at his office twice during December, but failed to find him.
"(7) About the 1st of January, 1898, the plaintiff, on going again to Mr. Bishop's office to see him in reference to this property, met him on Chapel street, and talked with him regarding the property, stating that the bank was particularly anxious to sell, and avoid the expense of alterations in the property, which it would be compelled to make if it was not disposed of, and that he (Bishop) could purchase the property at a very low price, and for a number of thousand dollars less than he had previously offered for the same property, and that the property was as good then as it ever was.
"(8) A few days later said Bishop called twice at the office of the plaintiff to obtain the keys of the Elliott House to examine the property, and, not finding the plaintiff at his office, left word with his bookkeeper as to the object of the visit.
"(9) The plaintiff, on being informed of Mr. Bishop's calls, telephoned him that by going to the Elliott House barber shop, and using his (the plaintiff's) name, he could secure entrance to the property.
"(10) Said Bishop, about the middle of January, after receiving this Information from the plaintiff, did call at the Elliott House as directed, and examined the property.
"(11) On another and subsequent occasion, in January, 1898, the plaintiff met Mr. Bishop, while the latter was in his carriage on Chapel or State street, and had a further talk with him regarding the purchase by him of the Elliott House property.
"(12) At the time of the sale of the property to Mr. Bishop, and at the request of the bank officials, the said Bishop executed and delivered to the bank a bond, marked 'Exhibit 4,' agreeing to hold the bank harmless from any commission to the plaintiff.
"(13) The property was sold to Mr. Bishop for the sum of $25,000, he to pay whatever commission there might be due for the sale of the property, as a part consideration thereof.
"(14) On the 5th, 12th, and 17th of January, 1898, said John W. Bacon saw Mr. Bishop in said New Haven, and talked with him regarding some changes the bank contemplated making in said property, in case the same was not sold, and also spoke to him regarding his purchase of the property.
"(15) Mr. Bacon, though visiting at the plaintiff's office each week in reference to the sale of this property during said month of January, did not inform the plaintiff that he was having any negotiations with Mr. Bishop; nor did the plaintiff have any notice whatever that any one connected with the bank was negotiating with Mr. Bishop until after the sale of the property to the latter.
"(16) The Elliott House was a well-known piece of property, and Mr. Bishop was familiar with it, having made an offer some 16 months previous to December last; but, until the interview with the plaintiff, about the 1st of January, 1898, he had made no move regarding this property since his previous offer, and had abandoned his negotiations for the purchase of the same for a period of a year and a half or more.
"(17) Two per cent. is the ordinary, established, and usual commission, in the absence of any agreement to the contrary, for the sale of real estate.
"(18) No agreement for any special rate of commission was made between the parties to this suit.
"(19) The plaintiff was the procuring cause of the sale of said property to said George H. Bishop at the price of $25,000, and the commission due him for the same is $500.
"(20) The plaintiff, in his opening testimony, offered a letter, written on the 5th day of February, by himself, to John W. Bacon, then an officer and president of the defendant bank. The letter was written after the plaintiff had learned from Bishop that he (Bishop) had made an offer for the property. The defendant objected to so much of the letter stating as follows: 'Which offer comes from Mr. Bishop on account of my bringing to his notice the property of the Elliott House being for sale.'
"(21) The entire letter is as follows: 'John W. Bacon, Treasurer, Danbury, Conn.—Dear Sir: About two weeks ago I called Mr. George H. Bishop's (of Peck & Bishop Company) attention to the Elliott House property as a very desirable piece of property to own. At that time he seemingly did not take much interest in the matter; told me he would think it over. He called at my office a few days ago, and requested the keys; and I gave him the instructions, left by you some little time ago, as I have previously written you, to go to the barber shop in the Elliott House building, and use my name, where he could get the keys handed him, by request, to inspect the property. He has examined the building, etc., and this a. m. informs me that he has submitted to the bank an offer in writing, which offer comes from Mr. Bishop on account of my bringing to his notice the property of the Elliott House being for sale. Yours, truly, L. G. Hoadley.' The objection of the defendant to the letter was stated as follows: 'Mr. Stoddard: It seems to me, if your honor please, that while some parts of this (the first part, possibly) might be admissible for some purposes, that this part which reads as follows: "Which offer comes from Mr. Bishop on account of my bringing to his notice the property of the Elliott House being for sale,"—was no proper matter tending to prove the fact; and I object to that part of the letter, as tending to prove the fact that the sale was brought about by Mr. Hoadley, because it is a declaration in his own interest, and after the sale was made.' The ruling of the court upon the admission of the letter was as follows: 'The Court: I don't think, gentlemen, that that statement is binding upon the bank; but I think the letter to the bank is admissible. I don't think the fact that this man said that this sale was brought about by his efforts is binding or conclusive; but the fact that he made such a statement to the defendant in this case, I think, is admissible, and I should allow it to come in for the purpose of proving the fact that he said so.'
"(22) The plaintiff, in opening his case, offered the deposition of James Osborne, of the Danbury Savings Bank, and in connection therewith counsel for the plaintiff and defendant made the following statements: 'Mr. Wright: There is a deposition here of Mr. James Osborne, of the Danbury Savings Bank. There is only a portion of this deposition that is pertinent to our case in chief, and I will only read so much of it as I claim now, and leave the balance for rebuttal. The deposition is as follows: (Reading deposition.) That is as far as I care to read now. Mr. Stoddard: That is down to and including the answer 12 on page 4 of my copy? Mr. Wright: Yes. Mr. Stoddard: Well, very well. Mr. Wright: Let me examine it a little further. It may be possible there is only a question or two. If you have on objection, we might read the whole deposition now. Mr. Stoddard: You must take your own course. Mr. Wright: Well, I will stop there.'
"(23) After the defendant had rested, and in the evidence in reply, the plaintiff offered to read the remainder of said deposition, and, among other questions and answers, the following from his direct examination in said deposition: 'Q. 15. Were you present at a meeting of the directors of the Savings Bank of Danbury when Mr. Bishop's offer for the Elliott House was received and acted upon?' The defendant objected to the question as Immaterial, irrelevant, and not within the issues, and because it should have been offered in the opening, if at all. The court overruled the objection, and the defendant duly excepted, and the witness answered: 'I was.'
"(24) Thereupon plaintiff offered question 16 of said deposition, as follows: 'Q. 16. Where was such meeting so held, and who was present thereat?' The defendant objected to this question as immaterial, irrelevant, and not within the issues of the case, and ought to have been introduced, if at all, in the opening. The court overruled the...
