Murphy v. Willis

• Decision Date: 15 March 1920
• Docket Number: 251
• Parties: MURPHY v. WILLIS
• Court: Arkansas Supreme Court

219 S.W. 776

143 Ark. 1

MURPHY v. WILLIS

No. 251

Supreme Court of Arkansas

March 15, 1920

Appeal from Crawford Circuit Court; James Cochran, Judge; affirmed.

Affirmed.

Starbird & Starbird, for appellants.

The court erred in giving instruction No. 3 and in refusing a new trial on the ground of surprise. 82 Ark. 381; 19 Cyc. 226. This instruction is also contradictory to the first instruction, causing confusion.

OPINION

WOOD J.

Appellee instituted this action against appellants on a written contract whereby appellants agreed to pay the appellee the sum of $ 785 for his services in selling for appellants a tract of land.

The appellants admitted the execution of the contract, but alleged that it was executed by them after agreement with appellee that the contract was not to be binding until the same was also signed by the purchaser of the land and also with the express understanding between appellants and appellee that a deduction of $ 300 was made from the purchase price of $ 16,000 in order to pay their part of the commission; that it was the understanding that this would be their full part of the commission, and that it was necessary for them to sign in order to make it easier for the appellee to collect the residue of his commission from the purchaser of the land; that the contract was to be null and void until the same was signed by such purchaser.

The appellee testified that the appellant signed the contract, and that he performed the services called for therein, and that appellants refused to pay his commission.

The appellants testified to facts tending to prove the allegations of their answer.

There was testimony on behalf of the appellee tending to rebut the testimony of the appellants.

The court in its instruction No. 1 defined the issue and told the jury that if they believed that the contract was signed by the appellants with the understanding that the appellee was to get all of his commission except $ 300 from the purchaser of the land and that the purchaser should sign the contract before it became binding on the appellants, their verdict should be in favor of the appellants; but if they found otherwise, their verdict should be in favor of the appellee.

The court further instructed the jury as follows: "3. A real estate agent is not allowed by law to act for both parties, therefore, Mr. Willis could not act in this matter for both Mr. Murphy and Mr. Arnold."

The appellants excepted to the ruling of the court in giving each of the instructions. The jury returned a verdict in favor of the appellee.

In appellants' motion for new trial they set up as one of their grounds the following: "(3) Surprise in the defendant's principal witness, Sindle, informing them before the trial that he heard Willis make the alleged statement to the Pierces and then testifying on the stand that he did not hear such statement and did not hear the conversation."

Appellants attached to the motion an affidavit by T. B. Murphy to the effect that witness Sindle told affiant before the trial that he was present and heard Willis tell the Pierces that he got the Murphys to sign the contract with the understanding that they would sign with Arnold and then when he got their signatures he did not have Arnold sign; that affiant could locate both Sam Pierce and Frank Pierce if a new trial were granted, and they would state that Willis made such statement to them which the affiant believes to be true.

The court overruled the motion for new trial and entered a judgment against the appellants. From which is this appeal.

There is no reversible error in the giving of the third instruction. "The general rule is that a real estate broker or agent who is negotiating a sale of property or otherwise acting in the usual line...