Epitomized Opinion

First Publication of this Opinion

This was an action for a real estate commission. Van Epp had a written contract with Mast, whereby he had the exclusive agency to sell a piece of property belonging to Mast up until Nov. 1st, 1920. The contract provided that Van Epp was to have 5 per cent commission if the property was sold by the former, the owner or any other person during the life time of the contract. In July, 1921, the property was sold by Mast to his neighbor. This action was then brought to recover the 5 per cent comm’ssion. Van Epp and his son testified that an oral contract for the year of 1921 was made which incorporated the terms of the agreement of the previous year. Mast denied this. The jury returned a verdict for the defendant, whereupon plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. As the burden was upon Van Epp to prove this contract by a preponderance of the evidence, a reviewing court cannot say that the verdict of the jury to the effect that no such contract existed was manifestly against the weight of the evidence.