Rifenburgh v. Ham

44 A.D. 620, 60 N.Y.S. 124

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1899
• Status: Published

Opinion

Per Curiam:

The issiie presented in this-case is purely one of -fact,' and the referee having "found in favor of the plaintiff, upon a conflict of evidence, there appears no good reason why the judgment should be" disturbed. It is conceded that the services of the plaintiff in disposing of defendant’s-farm were rendered: that'the farm was sold pursuant to the negotiations, made by the-plaintiff, and that there was an agreement, either expressed or clearly implied,, that he should be compensated for "his services: The referee has found that the - services' of the plaintiff were worth $200; and, while the pleadings allege a contract to pdy a certain sum per acre, amounting to much.more than, the .»referee- .hasvfóund,, -the -finding of. the-referee -for a smaller sum; based) upon cv different calculation, does not justify this-court in» reversing, the judgment, and the pleadings may bé" deemed to have been amended to conform to- the facts as- established by the evidence. Whether the plain-? tiff’s contract was fot* a certain sum per acre of the property disposed of, or whether liis compensation, was to be measured by a certain per cent of the amount realized, or whether he was to have á reasonable amount-for his services, is not very material. That lie was entitled to compensation is clear,, and the.amount fixed "by the referee not being" excessive, the judgment should be affirmed,, with costs. All concurred.