McClave v. Maynard

When the defendant first called upon the plaintiff he employed the latter to sell for him a farm in Hew Jersey, consisting of sixty-five acres, which he valued at five thousand dollars; hé also said he had other property, which he wanted to sell; he promised to pay the plaintiff a commission at the rate of two and a half per cent. The property other than the farm, which he wanted to sell, consisted of four houses; also in Hew Jersey. The defendant testifies that he called upon the plaintiff in December, 1863, or January, 1864, and offered to sell the farm for five thousand dollars, or to exchange the whole for thirteen thousand dollars. Both parties testify that the plaintiff introduced a Mr. Beach to the defendant for the purpose of negotiating an exchange of this property in Hew Jersey for property which Mr. Beach owned in Hew York and Brooklyn. They agreed on the exchange; but the defendant says he became dissatisfied in consequence of Beach’s dilatoriness in consummating the bargain, and he says he told the plaintiff to procure him another purchaser; but, within a few days after, Beach called and satisfactorily explained the cause of the delay, and the bargain was consummated, the defendant’s *321property being estimated in the exchange at thirteen thous- and dollars. Afterwards, the plaintiff agreed to receive one hundred dollars for his commissions, and to look to Beach for' the payment of this sum. But the plaintiff testifies that he promised to do this because, from defendant’s silence and from what Beach had expressly told him; he believed that the property of the defendant, which was disposed of, was only of the value of five thousand dollars. If this is true, he was certainly not bound by this promise, even if it amounted in all other respects to a valid agreement. The referee gave credence to the plaintiff’s testimony on this point, in preference to that of the defendant, and I see no reason why his conclusion should be disturbed.

With regard to the exclusion of evidence at fol. 51, this evidence was actually admitted at another stage.of the trial, and was fully submitted to the referee.

The judgment should be affirmed, with costs.

I think the referee erred in excluding the evidence offered at folio 51. The question was, what was said between "them when the defendant received the letter from McClave. This was excluded.

Previous to that, McClave had on proof of his letter to defendant saying that he would accept Mr. Beach's promise to pay the commissions, stated that at that time he was not informed as to the exact amount that had passed between them, and he was also permitted to state what his suppositions were when he wrote that letter. It was clearly the right of the defendant to show what conversation passed between them when the letter was delivered. It was not negotiation previous to writing the letter, but what took place, when defendant received it.

In addition to this, if the defendant acted on the plain tiffs letter, and was guilty of no fraud, it would be immater*320ial what the plaintiff supposed was the amount. He chose to take Beach for his pay-master rather than have the contract fail, and on his promise to do so the defendant acted.

If Beach deceived him, the plaintiff is not responsible.

The judgment should be reversed, and case6 referred back to referee.

The evidence excluded at fol. 51 was admissible. It related to an admission by plaintiff, and was offered by defendant.' Anything said by the plaintiff relating to the subject in the controversy was admissible, when offered by defendant.

The judgment should be reversed, costs to abide the event.