Bailey v. Chapman

41 Mo. 536

• Court: Supreme Court of Missouri
• Decided: October 15, 1867
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The objection that the court permitted the plaintiff to be recalled and re-examined could not have operated to the serious detriment of the defendant, and no advantage can be taken of it on error, as it was a matter resting in the sound discretion of the court. No exceptions were taken to the instructions ; but we have examined them and think they are wholly unobjectionable, and correctly expound the law as applicable to the case made by the pleadings and evidence. The testimony was conflicting, but it was for the jury to weigh and attach to it whatever importance they deemed it deserved.

A broker employed to make a sale under an agreement for a commission is entitled to pay when he makes the sale according to instructions and in good faith, and the principal cannot relieve himself from liability by a refusal to consummate the sale, or by a voluntary act of his own disabling lflm from performance—Wentworth v. Luther, 21 Barb. 145; Kock v. Emmerling, 22 How. (U. S.) 69; Moses v. Burling, 31 N. Y. 462.

The verdict of the jury entirely negatives the defence made by the defendant, that the plaintiff was to communicate with him before closing any contract of sale.

Judgment affirmed.

The other judges concur.