Opinion
No. 21481
Opinion Filed January 31, 1933.
(Syllabus.)
1. Appeal and Error — Review — Insufficiency of Evidence — Necessity for Urging Objection at Trial.
Where a case is submitted to the jury and the defendant neither demurs to plaintiff's evidence nor moves for an instructed verdict, nor otherwise legally attacks the sufficiency of plaintiff's evidence, the question whether there is any evidence reasonably tending to support a verdict for plaintiff is not presented for review by defendant's motion for a new trial.
2. Brokers — Action for Commission — Question of Procuring Cause of Sale for Jury.
The question of whether the broker was the procuring cause of the sale is one of fact, and the verdict will not be disturbed on that issue, where there is any evidence reasonably tending to support the same.
3. Same — Right to Commission Though Sale Made by Owner of Land.
A broker employed to sell a tract of real estate is entitled to his commission, if during the continuance of his agency he is the efficient or procuring cause of the sale, though the sale is made by the owner of the land.
4. Same — Owner Discharging Broker in Order to Effect Sale Himself to Broker's Prospect Held Liable for Commission.
The principal cannot discharge the broker pending negotiations by the latter with a prospective customer, in order to effect a sale to the latter himself, without being liable to the agent for the commission.
5. Same — Right to Commission not Defeated by Proof That Purchaser Bought for Another.
The right of a broker to recover a commission for making a sale of real estate is not defeated by proof that the purchaser purchased the property for another.
Appeal from District Court, Stephens County; M.W. Pugh, Judge.
Action by Stella Shoptaw against H.M. Wagnon. Judgment for plaintiff, and defendant appeals. Affirmed.
Jones Clift, for plaintiff in error.
C.L. McArthur, for defendant in error.
This is an appeal by the defendant from a judgment in favor of the plaintiff against the defendant for the recovery of an amount found due as a commission for the sale of real estate.
The defendant contends that the judgment is not sustained by the evidence. Since the defendant did not demur to the evidence, move for an instructed verdict, or otherwise legally attack the sufficiency of the plaintiff's evidence during the trial, the question of the sufficiency of that evidence cannot be presented on motion for new trial, or in this court. White v. Hughes, 145 Okla. 192, 292 P. 37.
Whether or not the plaintiff was authorized to sell the property at the time she began negotiations for the sale with Hill and Jackson, whether or not the plaintiff was the first to bring the proposition of the sale of the property to the attention of Hill and Jackson, whether or not the sale was made to Hill and Jackson, and whether or not the plaintiff was the procuring cause of the sale of the property, were questions of fact to be determined by the jury from the evidence presented. See Roberts v. Markham, 26 Okla. 387, 109 P. 127; Cornell v. Howe, 131 Okla. 299, 269 P. 243; Harris v. Owenby, 58 Okla. 667, 160 P. 596, and Stuart v. Mathews, 104 Okla. 105, 230 P. 696.
The defendant contends that the trial court erred in the giving of instruction No. 9, in that the jury was thereby led to assume that the court meant thereby that the facts showed that the defendant had not acted in good faith with the plaintiff. When that instruction is considered as a whole, we do not find that meaning therein. We find no reversible error in the instruction.
The defendant contends that the trial court erred in the giving of instruction No. 10. We find no reversible error therein. If the plaintiff was the procuring cause of the sale of the property to Hill and Jackson, her right to a commission was not defeated by proof that Hill and Jackson purchased the property for another.
The issues in this case were submitted to a jury under proper instructions without legal objections. The judgment conforms to the verdict of the jury. That judgment is affirmed.
RILEY, C. J., CULLISON, V, C. J., and SWINDALL, McNEILL, OSBORN, and WELCH, JJ., concur. BAYLESS and BUSBY, JJ., absent.
Note. — See under (2) R. C. L. Perm. Supp. p. 1116. (3) annotation in 44 L. R. A. 612; 26 A. L. R. 795; 4 R. C. L. 303, 304; R. C. L. Perm. Supp. p. 1108. (4) annotation in 43 L. R. A. 608; 44 L. R. A. 347; 4 R. C. L. 315, 316; R. C. L. Perm. Supp. p. 1114.