Jackson v. Lacy

• Decision Date: 15 December 1917
• Citation: 92 Conn. 256,102 A. 584
• Parties: JACKSON v. LACY.
• Court: Connecticut Supreme Court

102 A. 584

92 Conn. 256

JACKSON v. LACY.

Supreme Court of Errors of Connecticut.

Dec. 15, 1917.

Appeal from City Court of New Haven; John R. Booth, Judge.

Action by George F. Jackson against Alanson H. Lacy to recover broker's commissions on the sale of real estate. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

The complaint is in the usual form, and alleges that the plaintiff rendered services in the sale of defendant's real estate under an agreement by the defendant to pay what the plaintiff's services were reasonably worth, and that they were worth $2,500, which has never been paid. The answer admits that the services were rendered and not paid for, but denies that the defendant promised to pay what they were reasonably worth or that they were reasonably worth $2,500. The answer then goes on to allege a special agreement that the plaintiff should receive $1,250 commission if he effected the sale, and no more. An offer of judgment for $1,250 is annexed to the answer. Plaintiff replied denying the special agreement. Upon these pleadings the parties went to trial, and the plaintiff testified that his services were rendered without any agreement or understanding as to the amount of the commission, and offered evidence to prove that the usual commission for selling property of the same kind was 2 per cent. The defendant testified that before the contract for the sale of the property was executed the plaintiff expressly agreed with him to accept a commission of $1,250, being 1 per cent. on the price for which the property was finally sold. The cause was submitted to the jury, and after they had deliberated about an hour and a half they returned to the courtroom for further instructions, whereupon the following occurred:

"A Juror: The jury wishes to know to what extent the burden of proof rests upon the defendant.

"The Court: I will refer again to the charge that I already made on that point. I will reiterate what I already said. The burden in this as in all civil cases rests upon the plaintiff throughout the entire ease to convince you by a fair preponderance of the evidence that the contract of employment was as alleged by him, namely, to render services as a broker to the defendant on the sale of the property, under an implied promise, at least, that a reasonable sum should be paid for such services. If no special agreement as to the price was entered into, the law will imply a reasonable price was contemplated, and the plaintiff is under no burden to prove there was no specific agreement. His liability as to the burden of proof would end when he establishes the fact of employment and fulfillment of employment by producing a customer who is ready, able, and willing to purchase the property on the terms prescribed by the owner. If no contrary evidence is produced, he would prevail, for the law would supply by implying that a reasonable price was contemplated. If the defendant, as in this case, seeks to meet such allegations of the plaintiff by setting out a specific contract as to the price of such services, the burden is upon him to establish such contract by evidence which shall preponderate and overcome the evidence offered by the plaintiff upon this feature, and thus, while the burden of proving the essential allegations of his complaint never shifts from the plaintiff, but continues throughout the case, if the sufficiency of proof upon the affirmative allegations of the defendant's answer fails to predominate and overcome the evidence offered by the plaintiff upon these affirmative allegations, the defendant would fail in attempting to sustain them, because that burden is upon him. In other words, the burden of proving there was no specific agreement is not upon the plaintiff. The burden of proving there was a specific agreement is upon the defendant. All the plaintiff has to prove is that he rendered services at the...