OPINION.
FOX, J.
This is a sufficient recitation of the testimony to enable us to determine the controverted questions involved in this cause. We have carefully analyzed the petition in this case, and have reached the conclusion that it states a good cause of action. While the [436]*436contract entered into by defendant with plaintiff is the origin of the cause of action, it is not in fact a suit upon the contract, but is simply a concise statement of a cause of action for fraud, alleging the damages sustained by reason of the fraudulent conduct of the defendant.
• The contract was an essential ingredient to the cause, of action and is embodied in the statement of it. The allegations in the third count of the petition, as to the contract by defendant with plaintiff, for the sale of this mining lease, and the performance of it by plaintiff, were necessary in order to place plaintiff in a position to complain of the fraudulent acts of defendant, which, it is averred, deprived him of the fruits of his labor, in the performance of the contract.
The cause of action, as alleged in the third count of the petition, is not based upon the breach of the verbal agreement by defendant, prior to the expiration of the original contract, to extend the time of payment of the balance of the purchase money to the first of June. In this respect the prayer of the petition, “That by reason of breach of said verbal agreement and promise to extend said original contract by defendant, and by-reason of the fraud thereby practiced on plaintiff by defendant, plaintiff is damaged in the sum of five thousand dollars, for which sum, together with costs, plaintiff prays judgment,” is misleading. This does not, however, affect the substantial averments of the petition, and would not prevent a recovery, upon the true cause of action stated in the petition. The erroneous conception of this verbal agreement consists in treating it as a part of the cause of action, when its only purpose is that of being a part of the evidence which tends to establish the facts constituting the cause of action.
The substantial allegations of fraud, as charged in the petition, are in respect to the efforts of the defendant, to have the time expire in which the original contract was to be consummated in order to deprive plain[437]*437tiff of Ms commission. WMle the failure to carry out the verbal agreement that on the 1st day of May, he, the defendant, would extend the time for the completion of the trade, would not furnish the basis for a cause o'f action, yet it was competent and very material testimony, as tending to show how defendant was operating to prevent the consummation of the original contract according to its terms.
This is not an action to enforce the verbal contract referred to in the petition, nor is it an action for the breach of it. We may concede for the purposes of this case, that the verbal agreement, in respect to this mining lease, was not of such a character as could have been enforced or for which an action would lie for the breach of it. Yet we take it that in this action, where all the facts are alleged, and it is charged in effect that the defendant fraudulently prevented the consummation of the original contract, in order to deprive plaintiff of his commission, it was clearly competent to show his entire conduct, his or his agent’s verbal agreement, which were calculated to deceive or mislead the contracting parties and prevent them from complying with the first contract.
The Statute of Frauds has-no application to the cause of action stated in the third count of the petition.
If the facts are true as averred in the count in the petition upon which this case was tried, it is clear that they constitute a fraud upon the rights of the plaintiff, for which he is entitled to recover damages.
Contracts of the character involved in this litigation, are presumptively entered into in good faith, and it is the province of the courts, in administering the law as to such contracts, to carefully protect the interests •of the parties according to the true spirit and meaning of the contract. ' ,
Litigation is not uncommon upon this subject; in fact, it has had the attention of the courts of all the States more frequently than most any other. ■ An ex-[438]*438animation of the cases will demonstrate most clearly the tendency of all the courts to zealously guard against the efforts of principals to avoid the payment of the legitimate commissions to the broker. It is unnecessary to burden this opinion with the citation of cases. It is sufficient to call attention to the very careful and correct annotation of all the cases on this subject, in Brackenridge v. Claridge & Payne, 43 L. R. A. 593. There yon will find but one unbroken line of expression that, “where the broker is the instrument through which the sale has been effected, no sort of artifice, deceit or fraud, will deprive him of his commission. ”
Appellant very earnestly insists that the testimony as to the conversations and agreement with Bruen was incompetent, on the ground that no sufficient evidence was introduced, showing his authority to represent the defendant. Counsel for appellant very ably and logically present that question. Will say, however, we have carefully examined all the evidence disclosed by the record on that subject. It must be noted that the first negotiation in respect to this property was had by the plaintiff with Bruen. C. C. Playter, in whose name the original contract was made, negotiated and talked with Bruen. George Playter, who testified as to the verbal agreement, negotiated with Bruen. This, in connection with the testimony of James I. Geddes, certainly was sufficient to at least submit that question to the jury.
Witness Geddes testified upon that particular subject as follows:
“Q. Are you acquainted with Mr. Bruen? A. Yes.
“Q. What relation is he to Col. O’Neill? A. Son-in-law.
“Q. Now what conversation, if any, did you have with Col. O’Neill, regarding Mr. Bruen’s authority to act for him. State what it was in this matter ? A. ITe [439]*439said anything I had to communicate or any act of Bruen was his act. Mr. Bruen done his business.
“Q. "Was that with reference to this transaction t A. Yes, sir.”
There was a sufficient showing to submit the questions to the jury and they were the triers of the facts and had the right to weigh the testimony and determine the fact, as to the authority of Bruen to represent the defendant.
This brings us to the complaint of the appellant, in respect to the instructions of the court, upon submitting this case to the jury.
The instructions for the plaintiff were as follows:
“1. The court instructs the jury that under the contract read in evidence dated March 22, 1899, the defendant agreed to pay plaintiff the sum of five thousand’ dollars if the terms and conditions therein expressed were complied with by C. C. Playter or his assigns. You are further instructed that if you find from the evidence that during the life of this contract, that is to say, on or before May 1, 1899, it was agreed between O. C. or George PI. Playter, acting in that behalf, for Frederick R. Tibbets, of Boston, Massachusetts, if you find they were so acting, and the defendant, James O’Neill, by himself, or through his agent, George IP. Bruen, if you find said Bruen was.
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OPINION.
FOX, J.
This is a sufficient recitation of the testimony to enable us to determine the controverted questions involved in this cause. We have carefully analyzed the petition in this case, and have reached the conclusion that it states a good cause of action. While the [436]*436contract entered into by defendant with plaintiff is the origin of the cause of action, it is not in fact a suit upon the contract, but is simply a concise statement of a cause of action for fraud, alleging the damages sustained by reason of the fraudulent conduct of the defendant.
• The contract was an essential ingredient to the cause, of action and is embodied in the statement of it. The allegations in the third count of the petition, as to the contract by defendant with plaintiff, for the sale of this mining lease, and the performance of it by plaintiff, were necessary in order to place plaintiff in a position to complain of the fraudulent acts of defendant, which, it is averred, deprived him of the fruits of his labor, in the performance of the contract.
The cause of action, as alleged in the third count of the petition, is not based upon the breach of the verbal agreement by defendant, prior to the expiration of the original contract, to extend the time of payment of the balance of the purchase money to the first of June. In this respect the prayer of the petition, “That by reason of breach of said verbal agreement and promise to extend said original contract by defendant, and by-reason of the fraud thereby practiced on plaintiff by defendant, plaintiff is damaged in the sum of five thousand dollars, for which sum, together with costs, plaintiff prays judgment,” is misleading. This does not, however, affect the substantial averments of the petition, and would not prevent a recovery, upon the true cause of action stated in the petition. The erroneous conception of this verbal agreement consists in treating it as a part of the cause of action, when its only purpose is that of being a part of the evidence which tends to establish the facts constituting the cause of action.
The substantial allegations of fraud, as charged in the petition, are in respect to the efforts of the defendant, to have the time expire in which the original contract was to be consummated in order to deprive plain[437]*437tiff of Ms commission. WMle the failure to carry out the verbal agreement that on the 1st day of May, he, the defendant, would extend the time for the completion of the trade, would not furnish the basis for a cause o'f action, yet it was competent and very material testimony, as tending to show how defendant was operating to prevent the consummation of the original contract according to its terms.
This is not an action to enforce the verbal contract referred to in the petition, nor is it an action for the breach of it. We may concede for the purposes of this case, that the verbal agreement, in respect to this mining lease, was not of such a character as could have been enforced or for which an action would lie for the breach of it. Yet we take it that in this action, where all the facts are alleged, and it is charged in effect that the defendant fraudulently prevented the consummation of the original contract, in order to deprive plaintiff of his commission, it was clearly competent to show his entire conduct, his or his agent’s verbal agreement, which were calculated to deceive or mislead the contracting parties and prevent them from complying with the first contract.
The Statute of Frauds has-no application to the cause of action stated in the third count of the petition.
If the facts are true as averred in the count in the petition upon which this case was tried, it is clear that they constitute a fraud upon the rights of the plaintiff, for which he is entitled to recover damages.
Contracts of the character involved in this litigation, are presumptively entered into in good faith, and it is the province of the courts, in administering the law as to such contracts, to carefully protect the interests •of the parties according to the true spirit and meaning of the contract. ' ,
Litigation is not uncommon upon this subject; in fact, it has had the attention of the courts of all the States more frequently than most any other. ■ An ex-[438]*438animation of the cases will demonstrate most clearly the tendency of all the courts to zealously guard against the efforts of principals to avoid the payment of the legitimate commissions to the broker. It is unnecessary to burden this opinion with the citation of cases. It is sufficient to call attention to the very careful and correct annotation of all the cases on this subject, in Brackenridge v. Claridge & Payne, 43 L. R. A. 593. There yon will find but one unbroken line of expression that, “where the broker is the instrument through which the sale has been effected, no sort of artifice, deceit or fraud, will deprive him of his commission. ”
Appellant very earnestly insists that the testimony as to the conversations and agreement with Bruen was incompetent, on the ground that no sufficient evidence was introduced, showing his authority to represent the defendant. Counsel for appellant very ably and logically present that question. Will say, however, we have carefully examined all the evidence disclosed by the record on that subject. It must be noted that the first negotiation in respect to this property was had by the plaintiff with Bruen. C. C. Playter, in whose name the original contract was made, negotiated and talked with Bruen. George Playter, who testified as to the verbal agreement, negotiated with Bruen. This, in connection with the testimony of James I. Geddes, certainly was sufficient to at least submit that question to the jury.
Witness Geddes testified upon that particular subject as follows:
“Q. Are you acquainted with Mr. Bruen? A. Yes.
“Q. What relation is he to Col. O’Neill? A. Son-in-law.
“Q. Now what conversation, if any, did you have with Col. O’Neill, regarding Mr. Bruen’s authority to act for him. State what it was in this matter ? A. ITe [439]*439said anything I had to communicate or any act of Bruen was his act. Mr. Bruen done his business.
“Q. "Was that with reference to this transaction t A. Yes, sir.”
There was a sufficient showing to submit the questions to the jury and they were the triers of the facts and had the right to weigh the testimony and determine the fact, as to the authority of Bruen to represent the defendant.
This brings us to the complaint of the appellant, in respect to the instructions of the court, upon submitting this case to the jury.
The instructions for the plaintiff were as follows:
“1. The court instructs the jury that under the contract read in evidence dated March 22, 1899, the defendant agreed to pay plaintiff the sum of five thousand’ dollars if the terms and conditions therein expressed were complied with by C. C. Playter or his assigns. You are further instructed that if you find from the evidence that during the life of this contract, that is to say, on or before May 1, 1899, it was agreed between O. C. or George PI. Playter, acting in that behalf, for Frederick R. Tibbets, of Boston, Massachusetts, if you find they were so acting, and the defendant, James O’Neill, by himself, or through his agent, George IP. Bruen, if you find said Bruen was. defendant’s agent, and authorized to act for him in reference to the matter, the time for the completion of the purchase of the ‘Get There’ lease, from the defendant by said Tibbets would be extended, provided the sum of ten thousand dollars was paid defendant on or before May 1, 1899, and that said Tibbets was able and willing to comply with the contract read in evidence, dated March 22, 1899, and would have done so, had it not been for such agreed extension, if you find such extension was agreed upon, and the defendant refused to grant such extension on the first day of May, 1899, but agreed to make a contract with them on the next day, and thereupon [440]*440did make the contract read in evidence dated May 2, 1899, and 'if you further' find from the evidence that defendant’s delay in making the last-named contract until after the first day of May was for the purpose or with the intention or design of relieving himself from his obligation to pay plaintiff his commission as agreed upon, or was done with the design or intention on his part of depriving plaintiff of his commission for the sale of said lease, then you will find the issues for the plaintiff and assess his damages at the sum of five thousand dollars, together with interest thereon at the rate oi six per cent per annum.from the time demand was made by plaintiff upon defendant for such commission, if you believe from the evidence such demand was made.
“2. The court instructs the jury that if you find from the evidence that the defendant, James O’Neill, authorized one George H. Bruen to act for him and to agree with PI ay ter for an extension of the time in which to comply with the contract of March 22, 1899, read in evidence, then in that event an agreement to that effect made by said Bruen would be binding on defendant to the same extent as if made by himself personally.”
Instruction numbered 1 is erroneous. This, as before stated, is an action for damages induced by the fraudulent acts and conduct of defendant. While the contract fixing the amount of commission was competent evidence for the jury to consider in measuring the damages to be awarded, yet the jury had the right to estimate the damages and so state in their verdict. The error of this instruction in that respect is in the fact that the court tells the jury that if they find a certain state of facts, they will assess the damages at $5,000. This count is not an action on the contract, and the contract, under the law of this case, can not definitely fix the amount of damages. This'instruction should have told the jury, if they find for the plaintiff, they should assess his damages at such amount as they may believe [441]*441from the evidence he is entitled to, not exceeding the sum of $5,000. It was also error to have the jury assess as damages any interest. The damages in this case are unliquidated. No interest is claimed in the petition. This instruction should have also omitted special reference to the verbal agreement as between Playter and Braen. While this was material and most important evidence as to the perpetration of the fraud complained of in the petition, yet it ought not to be singled out and made the entire basis for the recovery.
The issues, by an appropriate instruction, should be clearly defined. The jury’s attention should be called to the contract of plaintiff with defendant, for the sale of the mining lease, as it is in the first part of the instruction. This should be followed by directing their attention to the contract entered into by C. C. Playter, for Tibbets, with defendant, purchasing the mining lease, and requiring them to find that plaintiff, under his contract with defendant, brought about this sale; then followed with the requirement to find, by reason of the fraudulent acts and conduct of defendant, the action of consummating the first contract wa,s deferred and preyented by defendant, until the 2nd day of May, with the fraudulent intent and design of depriving plaintiff of his commission.
The foregoing is not to be construed as a form for an instruction; but simply as a suggestion as to the features that should be embodied in one, so as to render it unobjectionable.
Instruction numbered 2 is erroneous, because it is calculated to mislead the jury, as to the true purpose of the testimony, as to the verbal agreement by Bruen to extend the time in which to comply with the contract. That testimony, as before stated, is admissible only for the purpose of establishing the charge of fraud alleged in the petition. It is for the purpose of showing the efforts of defendant to mislead the contracting parties, and then when the time comes to act, refuse to act and, [442]*442by that method, prevent the consummation of the first contract.
The cause of action on trial does not require the jury to find that the agreement with Bruen, as the agent of defendant, was a binding contract, and one that could be enforced. The concluding part of that instruction which tells the jury “then and in that event, an agreement to that effect made by said Bruen would be binding on defendant to the same extent as if made by himself personally,” should be left out, and in lieu thereof might be added — “Then and in that event, the acts and conduct of Bruen, in respect to such agreement, will be construed to be the acts of the defendant, and the jury may take into consideration such facts in determining the issues in this cause.”
With this modification, the1 first instruction clearly defining the issues, the jury would be advised as to the application of the testimony as to the issues, and not misled into the belief that the court was directing them to find the agreement a binding contract upon the defendant.
We have examined the record and have reached the conclusion that if the plaintiff, in pursuance of his contract with defendant, brought about the sale of the mining lease, as indicated by the first contract with G. O. Playter, and that defendant by misleading the con - tracting party, and by his fraudulent acts and conduct, prevented such sale being consummated, on the 1st of May, and designedly deferred the final completion of the sale until the second of May, in order to deprive 'plaintiff of his commission, he is liable in this action. This is substantially the cause of action set forth in the third count of the petition.
The discussion of the errors in the instructions given at the instance of plaintiff indicate clearly the views of this court as .to the issues which should be submitted in the declarations of law, upon a re-trial of this case, hence, it is unnecessary to review the contentions [443]*443as to the instructions for the defendant, and modification of them, by the court.
For the errors as indicated, by the views herein expressed, the judgment will he reversed and the cause remanded.
All concur.