Kelly v. Stone
| Decision Date | 06 April 1895 |
| Citation | 94 Iowa 316,62 N.W. 842 |
| Parties | KELLY v. STONE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Butler county; John C. Sherwin, Judge.
Action at law to recover compensation alleged to be due for services rendered in the sale of real estate. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.C. A. L. Roszell and Hemenway & Grundy, for appellant.
M. Hartness and Gibson & Dawson, for appellee.
The petition alleges that in February, 1892, the plaintiff and the defendant entered into a verbal agreement by which the plaintiff was engaged to procure a purchaser for a farm of 160 acres owned by the defendant; that, for the services stated, the plaintiff was to receive $50 if the farm sold for $28 per acre, and, in addition, all for which it should be sold in excess of that price; that in August, 1892, the plaintiff procured a purchaser for the farm, who paid therefor the sum of $30 per acre; that the farm has been conveyed to the purchaser; and that the compensation agreed to be paid to the plaintiff is due and unpaid. The answer admits the sale and conveyance of the farm as alleged, denies all knowledge on the part of the defendant of the instrumentality of the plaintiff in effecting the sale, and denies that the defendant is liable for any services rendered by the plaintiff. The jury returned a verdict in favor of the plaintiff for the sum of $370, with interest. The interest was remitted, and judgment was rendered in favor of the plaintiff for $370 and costs.
1. The plaintiff testified as a witness, and stated on his direct examination that an agreement was made with the defendant substantially as alleged in the petition and at the time therein stated. On cross-examination, he testified that the first conversation he had in regard to the sale of the farm was in 1891. The defendant then asked him to state the month and day of the month, but the plaintiff interposed an objection, which was sustained. We think the ruling was correct, as the agreement for compensation relied upon by the plaintiff was made in February, 1892. But, if the ruling be reregarded as erroneous, it was not prejudicial, as the witness subsequently testified that he had the farm for sale in August, 1891. The day of the month on which he had it for sale could not have been material. At the instance of the defendant, he testified to several matters which had relation to the agency of 1891, and, among others, that he had made arrangements to sell the farm if he could. He was then asked to state what the arrangements were, but, on the objection of the plaintiff, was not permitted to do so. In that there was no error, as the arrangements, whatever they may have been, were not relied upon by the plaintiff. The defendant complains of the refusal of the court to require the plaintiff to state what conversation he had with the defendant in the house about the land, referring to the house where the defendant resided, and where the agreement of February, 1892, is alleged to have been made. We think the question was a proper one; but, although an objection to it was sustained, we find that the plaintiff afterwards testified quite fully in regard to the conversation at the barn, in the house, and outside of the house after they had left it. Therefore prejudice could not have resulted from the ruling made.
2. A witness named Lyons was present when the agreement in question was made. On cross-examination he testified that he thought the sale of the farm was talked over in a general way in the house. He was then asked to state if, during the conversation in the house, he heard plaintiff tell about a man he had met in Charles City, who wished to buy the farm; but an objection to the question was sustained. The ruling appears to have been correct. The question did not relate to any matter concerning which the witness had testified in his direct examination, and, so far as can be ascertained from the record, it did not call for an answer which would have been relevant to any issue in the case.
3. Nathan Stone testified that the plaintiff came with a German to look at the farm in the latter part of January, 1892. The testimony was stricken out on the motion of the...
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