Mr. Justice McBride
delivered the opinion of the court.
1. The first contention of defendant is that the contract disclosed by the foregoing statement is one for the sale of lands by an agent upon commission, and that, being wholly in parol, it is void, being within Section 808, subdivision 8, L. O. L., which provides that an agreement “authorizing or employing an agent or broker to sell or purchase real estate for compensation on a commission” shall be void, unless in writing, The question thus raised is an important one, and the concrete case here presented is so close to the line that it has been given more than ordinary consideration. "We have finally concluded that it is not a contract for the employment of an agent to sell real estate. The only characteristic it has of such a contract is the stipulation that the compensation shall be 5 per cent of the sales made by any agent or by the plaintiff himself; but the evidence of plaintiff indicates that his principal business was to organize the selling department, select suitable agents, and generally manage that branch of the business. He was to create a selling force and manage it for the company, and it was this force which was to do the selling. For this service plaintiff was to receive 5 per cent of the sales made and his expenses incurred in traveling and organizing the force. The 5 per cent on sales was the measure of his [246]*246compensation for these services, and not for making sales of land. It is true that the contract, as detailed by plaintiff, contained a stipulation that, in case he himself made a sale, he was to receive 5 per cent commission on such sale, but this seems merely incidental to the principal contract; and while as to it he might be barred by the statute of frauds, yet, as no sale was made by him, that question does not arise here. There is a dearth of authorities precisely in point, but the following decisions seem to support the view announced above: Griffith v. Daly, 56 N. J. Law, 466 (29 Atl. 169); Wilson v. Morton, 85 Cal. 598 (24 Pac. 784).
2. Another objection urged is the ruling of the court excluding the testimony as to Schei’s statement to Guisness immediately after his conversation with plaintiff. The evidence offered tended to show that immediately after the interview with plaintiff, at which interview plaintiff claims the contract was assented to by Schei, Schei came into the next room, leaving the door open, and said in a loud voice to Guisness:
“What would you think that fellow wanted? He wanted 5 per cent on all sales made, and I told him there was nothing doing. ’ ’
This situation of the two rooms was detailed, from which it appears that plaintiff was sitting in the room which Schei had just left, and probably 12 feet from where Schei was standing when the remark was made; that the door was open; and that Schei was angry and spoke in a loud voice. No one will question that, if this had been uttered at that time in the hearing of the plaintiff, the testimony would have been admissible. If Schei had just assented to plaintiff’s terms, it does not appear probable that he would in a few moments after have used this language in his hearing. [247]*247Under the circumstances, the court could not decide, as a matter of law, whether or not the language was used in the hearing of plaintiff, but should have let the testimony go to the jury as part of the res gestae.
For this error, the judgment is reversed and a new trial directed. Reversed.
Mr. Justice Eakin and Mr. Justice Bean concur. Free access — add to your briefcase to read the full text and ask questions with AI