Leo G. McLaughlin Co. v. Phillips

CONREY, P. J.

to recover on a contract to pay a commission of one thousand dollars for services rendered in procuring an exchange of real property of defendants for other real property. Judgment for the defendants, from which the plaintiff appeals.

[638]

Appellant contends that the findings “are not supported or justified by the evidence.” The record being presented by means of a reporter’s typewritten transcript and there being no definite specifications therein, nor in the briefs, showing the particulars wherein the evidence is claimed to be insufficient, the court might be well justified in declining to frame for appellant the definite specifications of insufficiency of the evidence which should have been presented. However, to the extent that we are able to do so, we have endeavored to ascertain the merits of the case.

The last paragraph of finding II reads as follows: “That it is not true that on or about June 1st, 1917, or at any other time, said defendants promised and agreed in writing to pay to plaintiff the sum of $1000.00, or any other sum, as commission for its services, providing the plaintiff could find and produce the owner of certain other property secondly described in said agreement made a part of plaintiff’s complaint as Exhibit A, ready, willing and able to exchange the property last described in said agreement for the property first described in said agreement, but it is true that defendants signed and delivered to plaintiff the agreement a copy of which is attached to plaintiff’s complaint and marked Exhibit A, but with the express statement and understanding that said agreement in its operation and effect was conditional and contingent upon the sister of the defendant Pierce consenting to the exchange of said property in which she had an interest.” The evidence, without contradiction, proves that Mrs. Smith, a sister of defendant Pierce, was the owner of a one-fourth interest in one of the parcels of land first described in exhibit “A.” Defendant Pierce testified that when he signed the document, exhibit “A,” he stated to plaintiff’s representative that his sister owned the interest above mentioned. “I told him that it would not go without she—that is, that I would reserve the right to have her consent to the signing of this instrument.” On account of some informalities in exhibit “A,” a correctional document was signed; and that also proving: to be incorrect, a third instrument was prepared and signed, wherein, for the first time, the L. C. Reed Company, a corporation, the true owner of the property for which defendants were to trade, was named. Defendant Phillips testified that at the time of signing the last-named document by