McClintick v. Pyle

137 P. 788, 91 Kan. 393, 1914 Kan. LEXIS 42

• Court: Supreme Court of Kansas
• Decided: January 10, 1914
• Docket: No. 18,597
• Status: Published

Opinion

The opinion of the court was delivered by

Mason, J.:

Bert McClintick sued Morris Pyle for a real-estate commission and recovered a judgment, from which an appeal is taken.

Complaint is made of the refusal of several instructions. Two were to the effect that the plaintiff had the burden of proving that his acts were the “efficient and procuring,” “procuring or inducing” cause of the sale; that it was not enough to show them to have been a part of the chain of causes. The court instructed that there could be no recovery unless the plaintiff was the procuring cause of the sale. This sufficiently covered the point involved.

An instruction was given that a recovery could be had either upon an express or upon an implied agreement. The appellant urges that the evidence did not warrant the latter. The jury found specifically that there was an express agreement, and therefore the error, if any, was cured.

Complaint is also made, of the refusal to submit three special interrogatories asked by the defendant, as follows:

“What, if anything, did plaintiff do as such agent to sell said farm to E. W. Barker?

“Was plaintiff the efficient, proximate and procuring cause of the sale of the farm in question to E. W. Barker?

“Is it not a -fact that E. W. Barker only talked to plaintiff as a friend?”

The first of these perhaps called for evidence rather than the ultimate fact, and the court was' within its discretionary right in refusing it. (S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45.) The second was covered by a finding that the plaintiff was the “procuring” cause of the sale. The third was objectionable because of its negative and leading form. (A. T. & S. F. Rld. Co. v. Butler, 56 Kan. 433, 43 Pac. 767.)

Several questions asked upon cross-examination were ruled out, but the discretion of the court in this regard was not abused. The plaintiff’s" wife was allowed to testify that her husband wrote a letter' which he told her was to the defendant, but the evidence does not appear to have been prejudicial:

The judgment is'affirmed.