Dinkelspiel, J.
Plaintiff Institutes this suit to recover the sum of $450.00, plus twenty five per cent attorney's fees, under a oontraot said to have been made between him and the defendant, authorizing plaintiff to sell oertain real estate and to pay him in lieu of the commission of five per cent, all of the excess of the purohase price, over the sum of $4500.00. Further alleging that pSaintiff in every particular carried out and confirmed to all the covenants and considerations as agreed and whioh form the basis of the transaction whioh oa.uses this suit, and for whioh he is entitled to a judgment for the amount prayed.
The answer in the main sets up that defendant was suffering at the time that the signature,whioh is admitted, to the dooumsnt, in question, with defective eyesight and unable to read without glasses, ths.t when the document dated April 15th, 1918, was signed by the defendant, it was presented to him by plaintiff, that defendant wcs without gls3-ses and that he informed the plaintiff that he we 3 uneble to read s'.me ¿nd th-1 the plaintiff pretended to read to the defendant the terms incorporated in ssid agreement and at the time plaintiff read the se-id agreement 30 as to make it e pper.r that he was to receive an excess of eny price otfer Fifty Five Hundred Dollars; end that plaintiff fraudulently end intentionally misread the said document, or subsequently substituted the figures $4500.00 in lieu of §5500.00. And averring further that said a.ooept'-noe of s-id offer by s? id purchaser, Cerroll, who purchased the property for §5100.00 end that plaintiff agreed to reduce his commission by one hundred dollars, th't st the time of th3 acceptance of the offer by Carroll, olsintiff u?ds no claim for an exoess of commission end the aoceptenos was bsssd [118]*118upon a oommisaion of five per cent; that th8 xeduotlon in the prioe of said property was due to a deficiency in measurement. That said plaintiff received the sum of Five Hundred and Fifty Dollars from said Carroll, whioh he has refused to aooount for, and that he was entitled to a commission of five per cent on $5500.00, less one hundred dollars whioh he had agreed to forego, or a total of One Hundred Seventy Five Dollars} that he is therefore indebted unto your defendant for the xmiaiaiai remaining Three Hundred Seventy Five Dollars. Alleging further that on account of defective eyesight, whilst admitting his signature to the document sued on, avers that the figures $4500.00 were fraudulently inserted therein in lieu of $5500.00 and finally assuming the character of plaintiff in zKaEsiintienatJE dtec reoonvention, prays that the demand of plaintiff be dismissed and defendant have judgment in reoonvention for Three Hundred Seventy Five Dollars.
The questions presented are almost entirely based upon the testimony of ple-intiff, together with the documents attached and that of his counsel, Hr. Perez.
Plaintiff's testimony substantially is in accord more or less, with the allegations in his petition, he swears •positively that the defendant signed the document appointing him, plaintiff, as the agent to sell this property; that he had his glasses on before signing;that he read every word air'd after reeding deliberately signed same.
Mr. Perez, his counsel,supports him in that portion of his testimony whioh simply asked for instructions in reference to the document and sundry other matters connected therewith and he, Mr. Perez, being ill at the time, gave certain adyioe to the plaintiff, but in no wise tendered to aid ns in the determination of the real questions in this esse.
[119]*119un una other hand we have the testimony of the defendant end his wife, who positively swear that the defendant did not heve his glasses vb the time the agreement in question w?b presented to him; that seme was read by the plaintiff to him --nd thc-t he signed under representations made to him by the plaintiff, particularly in reference to his commission as to five per cent on the amount of the sale or whether or not he, plaintiff, was to receive the entire difference between Forty Five Hundred Dollars and whatever the property may have brought and especially denying that there ever was an intention on the part of the defendant to pay him anything beyond the five per cent commission, no matter what the property in question might have brought.
Independent and irrespective of the testimony of defendant end his wife, we have in this reoord the testimony of the purchaser of this property, Hr. Charles C-.rroll, s. respected member of the Bsx of this city, who dealt entirely with the plaintiff s-nd gives his testimony as to the occurrences from time to time from the beginning of the transaction until its final oonolusion and in answer to the question to state just whs.t dealings he had with Hr. Harvey with reference to the trs-nsfer of the property in question, the witness goes on to ste.te!
"Early in April, 1918, I wss hunting for some property on the belt, the railroad belt line, for the Simplex Flour Company. X sent out a circular to a number of real estate agents, stating this fact, and amongst other replies received one from the plaintiff", and without quoting the entire answer to the question put to this witness, he testified that plaintiff first asked him Six Thousand Dollars for the property and insisted that his client would not take less than that sum, that his commission on that would be three per cent, or five per cent, finally offering to pay for the property, provided [120]*120the description and the titles were olear, the sum of Fifty Five Hundred Dollars, and finding that the sketch was not quite oorreot, another 3ketoh ws.3 given to him and the titles hfeving been examined a part of the property was found not to be oorrect and the prioe therefore was reduced to the sum of §5100.00, whioh was finally accepted and during the oourse of a. conversation he agreed to reoeive one hundred dollars less from the defendant for the oommission he we 3 to have received.
Q, Did he say what his oommission was?
A. He said five per cent on the amount and we figured the amount and he would knook off one hundred dollars from his oommission; my reoolleotion Is we made up a little memorandum, whioh I gave to Harvey and Pohlmenn and that showed how eaoh would stand and the net amount that Pohlmenn wjb to get under the new arrangement, knocking off one hundred dollars from Harvey's oommission; then we agreed on the sale and it was to be on the 39th of April; the aot was passed on April 30th.
This witness goes on to testify at grsat length the nature of the conversation whioh we do not think it neoessery to give in full.
Q. Did Mr. Harvey tell you his oommission was five per oent'í
A. Absolutely; not only thrt but it was in the paper th?t X signed.
Q. Did he tell you Mr. Pohlmann wouldn't aooept less than Fifty Five Hundred Dollars?
A. Yes sir, he told me it was a shame to out him down to Fifty Five Hundred, he told me the property was worth and had oost Mr. Pohlmann more and a lot to that effect and it was a pity to take advantage of Mr. Pohlmann and out him down to Fifty Five Hundred Dollars.
[121]*121I never dreamed until long after tVt Hr. K- rvey claimed to heve some agreement «That Mr.
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Dinkelspiel, J.
Plaintiff Institutes this suit to recover the sum of $450.00, plus twenty five per cent attorney's fees, under a oontraot said to have been made between him and the defendant, authorizing plaintiff to sell oertain real estate and to pay him in lieu of the commission of five per cent, all of the excess of the purohase price, over the sum of $4500.00. Further alleging that pSaintiff in every particular carried out and confirmed to all the covenants and considerations as agreed and whioh form the basis of the transaction whioh oa.uses this suit, and for whioh he is entitled to a judgment for the amount prayed.
The answer in the main sets up that defendant was suffering at the time that the signature,whioh is admitted, to the dooumsnt, in question, with defective eyesight and unable to read without glasses, ths.t when the document dated April 15th, 1918, was signed by the defendant, it was presented to him by plaintiff, that defendant wcs without gls3-ses and that he informed the plaintiff that he we 3 uneble to read s'.me ¿nd th-1 the plaintiff pretended to read to the defendant the terms incorporated in ssid agreement and at the time plaintiff read the se-id agreement 30 as to make it e pper.r that he was to receive an excess of eny price otfer Fifty Five Hundred Dollars; end that plaintiff fraudulently end intentionally misread the said document, or subsequently substituted the figures $4500.00 in lieu of §5500.00. And averring further that said a.ooept'-noe of s-id offer by s? id purchaser, Cerroll, who purchased the property for §5100.00 end that plaintiff agreed to reduce his commission by one hundred dollars, th't st the time of th3 acceptance of the offer by Carroll, olsintiff u?ds no claim for an exoess of commission end the aoceptenos was bsssd [118]*118upon a oommisaion of five per cent; that th8 xeduotlon in the prioe of said property was due to a deficiency in measurement. That said plaintiff received the sum of Five Hundred and Fifty Dollars from said Carroll, whioh he has refused to aooount for, and that he was entitled to a commission of five per cent on $5500.00, less one hundred dollars whioh he had agreed to forego, or a total of One Hundred Seventy Five Dollars} that he is therefore indebted unto your defendant for the xmiaiaiai remaining Three Hundred Seventy Five Dollars. Alleging further that on account of defective eyesight, whilst admitting his signature to the document sued on, avers that the figures $4500.00 were fraudulently inserted therein in lieu of $5500.00 and finally assuming the character of plaintiff in zKaEsiintienatJE dtec reoonvention, prays that the demand of plaintiff be dismissed and defendant have judgment in reoonvention for Three Hundred Seventy Five Dollars.
The questions presented are almost entirely based upon the testimony of ple-intiff, together with the documents attached and that of his counsel, Hr. Perez.
Plaintiff's testimony substantially is in accord more or less, with the allegations in his petition, he swears •positively that the defendant signed the document appointing him, plaintiff, as the agent to sell this property; that he had his glasses on before signing;that he read every word air'd after reeding deliberately signed same.
Mr. Perez, his counsel,supports him in that portion of his testimony whioh simply asked for instructions in reference to the document and sundry other matters connected therewith and he, Mr. Perez, being ill at the time, gave certain adyioe to the plaintiff, but in no wise tendered to aid ns in the determination of the real questions in this esse.
[119]*119un una other hand we have the testimony of the defendant end his wife, who positively swear that the defendant did not heve his glasses vb the time the agreement in question w?b presented to him; that seme was read by the plaintiff to him --nd thc-t he signed under representations made to him by the plaintiff, particularly in reference to his commission as to five per cent on the amount of the sale or whether or not he, plaintiff, was to receive the entire difference between Forty Five Hundred Dollars and whatever the property may have brought and especially denying that there ever was an intention on the part of the defendant to pay him anything beyond the five per cent commission, no matter what the property in question might have brought.
Independent and irrespective of the testimony of defendant end his wife, we have in this reoord the testimony of the purchaser of this property, Hr. Charles C-.rroll, s. respected member of the Bsx of this city, who dealt entirely with the plaintiff s-nd gives his testimony as to the occurrences from time to time from the beginning of the transaction until its final oonolusion and in answer to the question to state just whs.t dealings he had with Hr. Harvey with reference to the trs-nsfer of the property in question, the witness goes on to ste.te!
"Early in April, 1918, I wss hunting for some property on the belt, the railroad belt line, for the Simplex Flour Company. X sent out a circular to a number of real estate agents, stating this fact, and amongst other replies received one from the plaintiff", and without quoting the entire answer to the question put to this witness, he testified that plaintiff first asked him Six Thousand Dollars for the property and insisted that his client would not take less than that sum, that his commission on that would be three per cent, or five per cent, finally offering to pay for the property, provided [120]*120the description and the titles were olear, the sum of Fifty Five Hundred Dollars, and finding that the sketch was not quite oorreot, another 3ketoh ws.3 given to him and the titles hfeving been examined a part of the property was found not to be oorrect and the prioe therefore was reduced to the sum of §5100.00, whioh was finally accepted and during the oourse of a. conversation he agreed to reoeive one hundred dollars less from the defendant for the oommission he we 3 to have received.
Q, Did he say what his oommission was?
A. He said five per cent on the amount and we figured the amount and he would knook off one hundred dollars from his oommission; my reoolleotion Is we made up a little memorandum, whioh I gave to Harvey and Pohlmenn and that showed how eaoh would stand and the net amount that Pohlmenn wjb to get under the new arrangement, knocking off one hundred dollars from Harvey's oommission; then we agreed on the sale and it was to be on the 39th of April; the aot was passed on April 30th.
This witness goes on to testify at grsat length the nature of the conversation whioh we do not think it neoessery to give in full.
Q. Did Mr. Harvey tell you his oommission was five per oent'í
A. Absolutely; not only thrt but it was in the paper th?t X signed.
Q. Did he tell you Mr. Pohlmann wouldn't aooept less than Fifty Five Hundred Dollars?
A. Yes sir, he told me it was a shame to out him down to Fifty Five Hundred, he told me the property was worth and had oost Mr. Pohlmann more and a lot to that effect and it was a pity to take advantage of Mr. Pohlmann and out him down to Fifty Five Hundred Dollars.
[121]*121I never dreamed until long after tVt Hr. K- rvey claimed to heve some agreement «That Mr. Pohlman was to receive so much net and that list all the excess wes to belong to him; Harvey had never talked any other v-.y th.>n th.'t he was selling first for Six Thousand Dollars and then for Fifty Five Hundred Dollars end thvt he vr.s to get five per cent on the sale, he never ai-id that he .7o-s an owner or that Harvey hid An interest in it from beginning to end; if he had X would have known better, how to deal to get the property for much les3.
On his cross examination this witness corroborated and reaffirmed his testimony heretofore referred to, going into many more details then in the original exeminstion, but in no wise, in our opinion, effecting same.
One of the witnesses wee Oscar C, Oury, Who substantially testified that he visited plaintiff at his office in company with the defendant, that he heard the conversation between plaintiff end defendant in reference to the deposit .
Q. What did Mr. Pohlmsnn see Mr. Harvey with reference tot
A. It was for a deposit on some property.
Q. What did Mr. Pohlmsnn ask Mr. Harvey?
A. Asked him when? He went ihxxsi.there to get this money.
Q. From whom?
A. Mr. Harvey. Mr. Harvey told him as soon as everything was signed, all the papers, he would pay him.
Elias Pallet, 3 real est3te agent in this oity, familiar with the property -in question, giving its description, owns some property in that same neighborhood.
Q. About when did you see Mr. Pohlmsnn with reference to a sals of that property?
A, During the winter time.
[122]*122Q. About what yeer?
A. About three ye"re ago.
O.Whe.t prloe did you try to buy the property at?
A. He asked me $6,00.00 for it. I told him I thought 1 oould get fifty-five hundred for it, bee-use I was trying to bunoh that property of his with mins end ? few othrr3 end submit it to some puroh'sers.
Q. Did he offer to sell it for that?
A. lie sir, he wouldn't sell it for fifty-five hundred.
A o..reful ex-.-mine.ticn of this record has convinced 113 th-it the document purporting to be a contract to employ the plaintiff in this Case, es re-.-l estate agent, to sell this property, defendant hid every right to believe and did believe the price to be obtained wc.s Fifty Five Hundred Dollars =nd thet the commission to be received by plaintiff was five per cent on thst amount and the douument or agreement presented in this record, signed by the defendant, was dons under the belief of the feots above stated and irrespective and independent of the testimony of the defendant and his wife in reference to defendant's defective eyesight, we have the testimony of three disinterested witnesses, one being the purchaser of the property, who swears positively and directly of whst plaintiff told him in reference to the 3ale of this property, his commission end they are absolutely in accord with the testimony of the defendant and negative to that of plaintiff. There can be no mistake about this. Besides ’ ' ■ that, the other witnesses, one stating that he went with the defendant to plaintiff's office and there in a conversation in reference to the property in question, the deposit of ten per cent of fifty five hundred dollars being then in plaintiff's possession and before plaintiff's signature to the deed of sale of the prop[123]*123erty, he went to see the/defoywmt with this witness to get him to return the oommission or that pe.rt of it belonging to him, which the dirtmrt plaintiff promised to do the moment he signed the aot, and added to this the xigx±££saoux significant faot that only a few years' prior to the sale in question, another witness, who owns adjoining property, wanted to get the defendant to permit him to sell his property and thought he might get fifty five hundred dollars, and defendant refused and would not entertain this offer, so that all the circumstanoes and the faots oonneoted with this case point directly to the confirming of defendant's testimony and to our mind presents clearly the faot that plaintiff took advantage of the defendant and oonoealed from him the true facts in connection with his agency,and that defendant signed the agreement in question under suoh circumstances as lead the Court aqua to believe, as we do, thot the grave misstatements made by plaintiff to defendant, produced his signature to the document in question and that being a fraud, in attempting to overreaoh, oannot prevail in this osse.
We find on examination, a oe.3e very much in common, Denson against Stewart et al, 15 Annf p. 456, and the syllabus there reeds:
"Where the agent, authorised to sell a thing for a. particular prioe, sells it at a higher price, the surplus will belong to the principe! end the agent is entitled only to his stipulated oommission."
The burden of proof being always borne by the party who alleges, we are satisfied that this burden has been properly carried and met by the defendant in this oese, on his recon^entional demand.
Besides, on questions of fact, where the Court aqua sew and heard the witnesses, his opinion is entitled to greet [124]*124weight and it is not to be disturbed unless manifestly erroneous, and in this case we are satisfied that his opinion was justified and oorreot.
Por the reasons assigned, it is ordered, adjudged and desreed that the judgment of the Court aq.ua be and the same is hereby affirmed, with oosts of both Courts to be paid by plaintiff",
-Judgment affirmed-