Opinion
April Term, 1896.
William H. Page, Jr., and F.H. Gerrodette, for the appellant.
Johnson Lamb, for the respondent.
This is an action to recover commissions on a sale of $51,000 par value of the bonds of the Adirondack League Club. The plaintiff testified to his employment by defendant as a broker to negotiate a sale, and an agreement for compensation of five per cent of the par value of the bonds. Evidence was given tending to show that the plaintiff induced Dr. Hoagland to purchase the bonds. The defendant denied his employment of the plaintiff. The case was submitted to the jury on two questions: The employment of the plaintiff, and whether the plaintiff had effected the sale. By their verdict the jury have determined both questions in favor of the plaintiff.
The main point urged on this appeal is that the verdict was against the weight of evidence. We think that there was no such preponderance of testimony on either side as to justify us in setting aside any verdict the jury might render. After the sale to Dr. Hoagland the defendant telegraphed to the plaintiff: "You have done well, I will arrange your commission on my return." This telegram tends strongly to show that defendant must have had some agreement or arrangement with the plaintiff on the subject. If it be conceded that the telegram was compatible with the defendant's acting in the matter only as the agent of the club, it is sufficient to say that the defendant makes no claim that he acted as agent, but denies utterly any employment of the plaintiff. Further, if defendant assumed to act as agent of the club he still would be personally liable, for both his own testimony and that of the club officers proved that such action on his part would have been without authority. It is unnecessary to discuss the criticism made on the form of the complaint, because any defect in that respect, if such there were, was cured by the evidence and the verdict.
The admission of the testimony of the plaintiff as to a transaction had between himself and the defendant, other than the one the subject of this action, presents a question more doubtful.
The plaintiff, on his cross-examination, had been asked whether the defendant had not befriended him. He said no; that he had complained of the defendant's treatment in one transaction. On the re-direct examination the witness was allowed, against the defendant's objection and exception, to state what that transaction was. The statement was, in effect, that defendant had employed the plaintiff as broker to obtain a loan on securities; that the plaintiff had substantially succeeded in negotiating the loan with a trust company, when the defendant, without plaintiff's knowledge, visited the president of the company and closed the negotiation himself, depriving the plaintiff of his commission. We cannot see that the cross-examination warranted the admission of this evidence. The transaction was not called out by the cross-examination. This error, we think, too serious to be overlooked. The effect of the evidence was to prejudice the jury against the defendant, and might lead the jury to believe that if the defendant had once by sharp practice deprived the plaintiff of his commission he might be repeating his course in the transaction, the subject of this litigation.
The judgment and order appealed from should be reversed and a new trial granted, costs to abide event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide event.