Mr. Chief Justice Shope
delivered the opinion of the Court:
The plaintiffs, real estate brokers of the city of Chicago, brought this action to recover commissions on a sale of certain real estate of the defendant, made by them in pursuance of a verbal authority and contract with the defendant. The point of contention is, whether the agents were authorized to sell for the price of $90,000.
It appears from the evidence that the defendant authorized the plaintiffs, verbally, to sell the property for $100,000, but if they could do no better, to take $95,000. This was in December, 1884, and at that time, and in the presence of the defendant, one of the plaintiffs made a memorandum of the terms of the sale in a book kept by plaintiffs. The entry thus made was: “Nos. 190 and 192 5th ave.; five-story and basement brick; rents $7420 to June 1, 1885; price $100,000.” In parenthesis, the plaintiffs entered their private mark for $95,000, which was then understood to be the lowest selling price. Plaintiffs further contend, that in October or November, 1885, the defendant, at their office, directed Snow to sell the property for $90,000, and that thereupon, as the result of such order, the plaintiff Snow, during the conversation, and in the presence and sight of Monroe, opened their sales record book, and wrote therein the date, “October 31, 1885,” together with certain cipher marks, indicating to himself and partner the new selling price of $90,000. On the trial, the court admitted in evidence this last entry on the plaintiffs’ books, over the objection of the defendant, and this is assigned for error.
The entry, having been made at the time when the direction was given by the defendant, and as part of the interview, and in the presence and sight of the defendant, was a part of the transaction,—in other words, it was part of the 'res gestee, and as such was admissible as original evidence in corroboration of the testimony of plaintiffs, that at the date mentioned defendant directed the plaintiffs to sell for $90,000. When a transaction is disputed, anything said, done or written in the presence of the parties, as the immediate, unpremeditated and spontaneous result of such transaction, is admissible in proof of the fact that the transaction occurred, or of its true significance. (1 Wharton on Evidence, secs. 258-267; 2 id. sec. 1002.) In Reviere v. Powell, 61 Ga. 30, the suit was on a check for $225, claimed to have been deposited by plaintiff with defendant. The question of fact was, whether or not the money called for by the check had been paid in a previous settlement between the parties. Witnesses differed in their recollection of the fact. Powell offered in evidence a certain book of Powell & M., which showed an entry of the $225, and its payment in settlement. The court say: “The entry was made at the time of the transaction, arid in the presence of the parties, the plaintiff included. It was therefore a part of the res gestee. Any such memorial, made at the time and in the presence of the parties, upon anything,—wood, stone or paper,—is evidence, and admissible, especially in a case where human recollection differs, in order to strengthen the one side or the other. It is immaterial who made it, so that it was made at the time and in the presence of the parties at variance.”
It makes no difference that the private mark was used in making the entry, or that it was in cipher. In Northbank v. Abbott, 13 Pick. 465, the question was whether notice of nonpayment had been given to the indorser of the note. The bank messenger had absconded. An entry in his book, showing the name of such indorser, followed by a cipher mark, was put in evidence, in connection with testimony of the cashier that he knew the meaning of the cipher, and knew the mark to be that the indorser had been notified. The court, by Shaw, J., held the memorandum to be competent evidence. So, here, the entry was made, in relation to the price agreed upon at which the property should be sold, in the defendant’s presence, and included the date of the conversation, and, as shown, was made in respect of the new selling price. If done in the presence of the defendant, he must have known that it related to the price of the property that was the subject of the conversation. He had just directed the sale at the less price, and there .was no other reason for making the entry upon the book. In the course of plaintiffs’ business, the selling price of property, where there was discretion vested in them to take a less price than that asked for the same, the cipher was used to prevent the employes of the office from knowing at what the property might be purchased.
On the trial, the defendant introduced in evidence a postal card, addressed to the defendant, on the reverse side of which was written and printed: “Some time having elapsed since we were advised as to the price and terms of the property hereinafter mentioned, you will kindly insert below any change you desire to make, and return this to us, ”—which was signed by plaintiffs. It bears date February, 1886, and states the price of the property at $100,000. The defendant testified that Snow wrote and gave him this card at the interview of February 13, 1886. It was shown, we think, satisfactorily, that it was in fact written by a clerk, under general instructions to write to correspondents after the 22d day of February, 1886. On this card was the letter B and the figures 112, which the proof shows was a reference to book B, page 112, where the private mark indicating $90,000 as the selling price is found. This card, unexplained, tended to contradict the testimony of the plaintiffs that on February 13, 1886, the selling price was changed to $90,000, and tended to corroborate the defendant in that regard. To explain this the plaintiffs were properly allowed to prove, by their clerk, that he wrote the card, and that he took his figures from the book, and that he did not know the meaning of the private marks therein, indicating the selling price. And we think, that in further explanation of this apparent contradiction, the entry in the book at the page referred to in the card was properly admissible in evidence, in connection with the testimony of Snow as to the meaning of the private marks there found.
It is next urged that the trial court improperly admitted in evidence the written contract of the sale of the property to De Zeng. The contract was signed, “ Stephen Monroe, by Snow & Dickinson, his authorized agent, ” and by Bichard De Zeng, successor in trust, etc. The objection is, that the plaintiffs had no written authority to make the sale. The objection is without force. A person may employ a broker or agent to negotiate a sale of real estate without giving him written authority so to do. As between the vendor and vendee the authority of the agent of the vendor must be in writing, but the rule goes no farther. Bo question is raised of De Zeng’s readiness and willingness to consummate his purchase. The defendant’s repudiation of his agent’s contract of sale will not deprive such agent of compensation for his services. The written contract was properly admitted in evidence, as tending to show that plaintiffs had made a valid sale binding on the purchaser, and enforcible by the vendor.
On the trial, the court instructed the jury, on behalf of the plaintiffs, as follows:
1.
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Mr. Chief Justice Shope
delivered the opinion of the Court:
The plaintiffs, real estate brokers of the city of Chicago, brought this action to recover commissions on a sale of certain real estate of the defendant, made by them in pursuance of a verbal authority and contract with the defendant. The point of contention is, whether the agents were authorized to sell for the price of $90,000.
It appears from the evidence that the defendant authorized the plaintiffs, verbally, to sell the property for $100,000, but if they could do no better, to take $95,000. This was in December, 1884, and at that time, and in the presence of the defendant, one of the plaintiffs made a memorandum of the terms of the sale in a book kept by plaintiffs. The entry thus made was: “Nos. 190 and 192 5th ave.; five-story and basement brick; rents $7420 to June 1, 1885; price $100,000.” In parenthesis, the plaintiffs entered their private mark for $95,000, which was then understood to be the lowest selling price. Plaintiffs further contend, that in October or November, 1885, the defendant, at their office, directed Snow to sell the property for $90,000, and that thereupon, as the result of such order, the plaintiff Snow, during the conversation, and in the presence and sight of Monroe, opened their sales record book, and wrote therein the date, “October 31, 1885,” together with certain cipher marks, indicating to himself and partner the new selling price of $90,000. On the trial, the court admitted in evidence this last entry on the plaintiffs’ books, over the objection of the defendant, and this is assigned for error.
The entry, having been made at the time when the direction was given by the defendant, and as part of the interview, and in the presence and sight of the defendant, was a part of the transaction,—in other words, it was part of the 'res gestee, and as such was admissible as original evidence in corroboration of the testimony of plaintiffs, that at the date mentioned defendant directed the plaintiffs to sell for $90,000. When a transaction is disputed, anything said, done or written in the presence of the parties, as the immediate, unpremeditated and spontaneous result of such transaction, is admissible in proof of the fact that the transaction occurred, or of its true significance. (1 Wharton on Evidence, secs. 258-267; 2 id. sec. 1002.) In Reviere v. Powell, 61 Ga. 30, the suit was on a check for $225, claimed to have been deposited by plaintiff with defendant. The question of fact was, whether or not the money called for by the check had been paid in a previous settlement between the parties. Witnesses differed in their recollection of the fact. Powell offered in evidence a certain book of Powell & M., which showed an entry of the $225, and its payment in settlement. The court say: “The entry was made at the time of the transaction, arid in the presence of the parties, the plaintiff included. It was therefore a part of the res gestee. Any such memorial, made at the time and in the presence of the parties, upon anything,—wood, stone or paper,—is evidence, and admissible, especially in a case where human recollection differs, in order to strengthen the one side or the other. It is immaterial who made it, so that it was made at the time and in the presence of the parties at variance.”
It makes no difference that the private mark was used in making the entry, or that it was in cipher. In Northbank v. Abbott, 13 Pick. 465, the question was whether notice of nonpayment had been given to the indorser of the note. The bank messenger had absconded. An entry in his book, showing the name of such indorser, followed by a cipher mark, was put in evidence, in connection with testimony of the cashier that he knew the meaning of the cipher, and knew the mark to be that the indorser had been notified. The court, by Shaw, J., held the memorandum to be competent evidence. So, here, the entry was made, in relation to the price agreed upon at which the property should be sold, in the defendant’s presence, and included the date of the conversation, and, as shown, was made in respect of the new selling price. If done in the presence of the defendant, he must have known that it related to the price of the property that was the subject of the conversation. He had just directed the sale at the less price, and there .was no other reason for making the entry upon the book. In the course of plaintiffs’ business, the selling price of property, where there was discretion vested in them to take a less price than that asked for the same, the cipher was used to prevent the employes of the office from knowing at what the property might be purchased.
On the trial, the defendant introduced in evidence a postal card, addressed to the defendant, on the reverse side of which was written and printed: “Some time having elapsed since we were advised as to the price and terms of the property hereinafter mentioned, you will kindly insert below any change you desire to make, and return this to us, ”—which was signed by plaintiffs. It bears date February, 1886, and states the price of the property at $100,000. The defendant testified that Snow wrote and gave him this card at the interview of February 13, 1886. It was shown, we think, satisfactorily, that it was in fact written by a clerk, under general instructions to write to correspondents after the 22d day of February, 1886. On this card was the letter B and the figures 112, which the proof shows was a reference to book B, page 112, where the private mark indicating $90,000 as the selling price is found. This card, unexplained, tended to contradict the testimony of the plaintiffs that on February 13, 1886, the selling price was changed to $90,000, and tended to corroborate the defendant in that regard. To explain this the plaintiffs were properly allowed to prove, by their clerk, that he wrote the card, and that he took his figures from the book, and that he did not know the meaning of the private marks therein, indicating the selling price. And we think, that in further explanation of this apparent contradiction, the entry in the book at the page referred to in the card was properly admissible in evidence, in connection with the testimony of Snow as to the meaning of the private marks there found.
It is next urged that the trial court improperly admitted in evidence the written contract of the sale of the property to De Zeng. The contract was signed, “ Stephen Monroe, by Snow & Dickinson, his authorized agent, ” and by Bichard De Zeng, successor in trust, etc. The objection is, that the plaintiffs had no written authority to make the sale. The objection is without force. A person may employ a broker or agent to negotiate a sale of real estate without giving him written authority so to do. As between the vendor and vendee the authority of the agent of the vendor must be in writing, but the rule goes no farther. Bo question is raised of De Zeng’s readiness and willingness to consummate his purchase. The defendant’s repudiation of his agent’s contract of sale will not deprive such agent of compensation for his services. The written contract was properly admitted in evidence, as tending to show that plaintiffs had made a valid sale binding on the purchaser, and enforcible by the vendor.
On the trial, the court instructed the jury, on behalf of the plaintiffs, as follows:
1. “If the jury believe, from the evidence, that the plaintiffs were engaged in business as real estate agents or brokers, in Chicago, that defendant requested or authorized them to sell or find a purchaser for the property in question at the price of $90,000 cash, and that said authority was not limited and was not revoked, and that, pursuant to such request, they did find such a purchaser willing and able to buy said property on said terms, and that defendant, on being notified that such purchaser had been found, and was ready to close the bargain on said terms, refused to carry out the trade, then plaintiffs have earned their commission, and are entitled to recover.
2. “Ton are further instructed, that it is admitted by the defendant in this case that the customary and usual commissions on sales of the character of the one here in question is two and one-half per cent. And you are instructed, that if, under the evidence and the instructions of the court, you find for the plaintiffs, then your verdict should be for two and one-half per cent on $90,000.”
The giving of each of these instructions is assigned for error. The objection to the first instruction is, that it authorizes the plaintiff to recover, without showing that an enforeible sale of the property had been made, or that the contract of sale was completed by a conveyance. Appellant contends, that inasmuch as he refused to ratify the contract of sale, and the purchaser could not have it specifically performed for want of written authority to the plaintiffs to make the sale, he is not bound to pay the plaintiffs anything for their services. We can not lend our sanction to this view of the law. A real estate broker employed to make sale of land, who finds a purchaser at the price fixed by the owner, who is ready, able and willing to take a conveyance and pay the purchase price, has earned the compensation agreed to be paid him; or if the compensation is not fixed by the parties, he will be entitled to recover the usual and customary reasonable compensation for the service performed. Thus, in McGavoch v. Woodlief, 28 How. 221, the court said: “The broker must complete the sale,—that is, he must find the purchaser in a situation ready and willing to complete the purchase on the terms agreed on,—before he is entitled to his commissions. Then he will be entitled to them, though the vendor refuse to go on and perfect the sale. ” In Doty v. Miller, 43 Barb. 529, it is said: “The cases are to the effect that a broker or agent who undertakes to sell property for another for a certain commission, if he finds a purchaser willing to purchase at the price, has earned and can recover his commissions, though the sale never was completed, if the failure to complete the sale was in consequence of a defect of title, and without any fault of the broker or agent.” And so, also, in Bailey v. Chapman, 41 Mo. 537, it is said: “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 can not relieve himself from liability by refusal to consummate the sale, or by a voluntary act of his own disabling him from performance.” We are entirely content with the views expressed in the foregoing citations of authority, and are of opinion that there was no error in giving said instruction.
There was no error in giving the second instruction quoted. No testimony was taken of the value of plaintiffs’ services, and there was no conflict upon that point. The parties had stipulated what the commissions should be, in case of a recovery by plaintiffs. That stipulation, as found in the record, is: “It is admitted by the parties, that, in the absence of an agreement, the rate of commissions allowed upon sales of real estate of this size is two and one-half per cent.” The reasonable charge for commissions was not, therefore, a disputed or controverted fact in the case, and the court committed no error in directing the jury to compute plaintiffs’ damages in accordance with such stipulation, if they found the issues for the plaintiffs.
The court properly refused a new trial on the ground of newly discovered evidence. The evidence claimed to be newly discovered was cumulative, merely, and the rule is, that a new trial will not be granted to let in other testimony of this character, or for the purpose of impeaching the testimony of a witness who has sworn in the case, Unless it clearly appears that the cumulative testimony will be clear and decisive as to the rights of the parties, upon another trial. This testimony is not of that character. We are not permitted to investigate the facts to determine whether the findings were justified.
We are of opinion that no reversible error has intervened, and the judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.