Potvin v. Curran & Chase

• Decision Date: 08 December 1882
• Citation: 14 N.W. 400,13 Neb. 302
• Parties: FABIAN S. POTVIN, PLAINTIFF IN ERROR, v. CURRAN & CHASE, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 400

13 Neb. 302

FABIAN S. POTVIN, PLAINTIFF IN ERROR, v. CURRAN & CHASE, DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 8, 1882

ERROR to the district court for Lancaster county. Tried below before POUND, J.

AFFIRMED.

J. R Webster, for plaintiff in error, cited: Coleman v Meade, 13 Bush., 358. Wylie v. Marine Bk., 61 N.Y. 415. Schwartze v. Yearly, 31 Md. 270. McGavock v. Woodlief, 20 How., 221. Middleton v Findlar, 25 Cal. 76.

S. P. Vanatta, for defendants in error, cited: Love v. Miller, 53 Ind. 294. Kock v. Emmerling, 22 Howard, 69. Pearson v. Mason, 120 Mass. 53. Lest v. Norton, 43 Com., 219. Simonson v. Kissick, 4 Daly, N.Y. 143.

OPINION

LAKE, CH. J.

One of the alleged errors is, that the verdict is not supported by sufficient evidence. We are of the opinion, however, that it is. The action was brought to recover the sum of fifty dollars as the stipulated consideration or commission for furnishing to the plaintiff in error a purchaser of a leasehold interest in certain real estate, which he was desirous of selling, at the fixed price of two thousand dollars.

There is some conflict in the evidence, to be sure, but, under the rule of this court, that a verdict not manifestly wrong will be sustained, it is ample to justify the ruling of the learned judge of the district court in refusing a new trial.

The defense to the action seems to rest upon the claim that no completed sale of the property was made, wherefore there could have been no purchaser, and consequently no commission earned. If, however, the testimony of Curran be accepted as embodying the true state of facts (and we see no reason for holding that the jury were not warranted in so taking it), then it is clear that a purchaser was furnished, to the satisfaction of Potvin, and a sale actually made to him.

In his testimony, Curran says: "I was employed by Fabian S Potvin, as one of the firm of Curran & Chase, to sell his interest in a certain building on O street between Eleventh and Twelfth streets, in Lincoln, Nebraska. * * * Potvin told me that he wanted to sell his interest in the property * * * and that, if I could furnish him a customer, he would give me fifty dollars commission. I told him I would try and do the best I could in looking up a purchaser. I found a man by the name of Lockwood looking for property. I took him over, * * * introduced him, and said to Mr. Potvin that Mr. Lockwood would like to look the property over which he wished to dispose of. Mr. Potvin showed it to him, and Mr. Lockwood said to Mr. Potvin: 'If you will give me two or three days to look the matter over, I will call;' and Mr. Potvin said, 'No;' that he would only give him until noon of the same day. Some time before noon of that day, Mr. Lockwood came to me and said that he had concluded to take the property. I went with him down to Mr. Potvin, and Mr. Lockwood said to Mr. Potvin: 'I have concluded to take your property if this offer will do; I will pay you two hundred dollars down now, and the balance the next Monday or Tuesday.' Possibly it might have been Wednesday. Mr. Potvin told him that would do. So Mr. Lockwood paid him (Mr. Potvin) two hundred dollars, and took Potvin's receipt for the same. And I said: 'That is all right then, is it?' He said, 'Yes.' I told him I was in a hurry, and left." Curran testified still further on his cross and re-direct examination, but to the same effect. Among other things, he said: "Mr. Potvin agreed to accept the two hundred dollars as part...