DuPEROW v. GROOMES

DuPEROW v. GROOMES. Real Estate Agents; Evidence; Appeal and Error; Instruction to Jury. 1. In an action by a real estate agent against liis principal to recover a commission on a sale of land, it is not error to permit the agent to testify that at the time of his employment he made a written memorandum of that fact, where the memorandum itself is not offered in evidence. (Distinguishing DuPerow v. Groomes, 42 App. D. C. 287.) 2, It is not error for the trial court to refuse a prayer for instruction not supported by the evidence. No. 2787. Submitted May 3, 1915. Decided May 24, 1915. Hearing on an appeal by the defendant from a judgment' of the Supreme Court of the District of Columbia, on verdict, in an action by a real estate agent to recover a commission on a sale of the defendant’s land. Affirmed. The Court in the opinion stated the facts as follows: This is the second appeal by Mortimer DuPerow from a judgment rendered in an action by Leonard W. Groomes to recover commission on the sale of a lot of which DuPerow was the owner1. The judgment was reversed on the former appeal because the court permitted Groomes to offer in evidence a memorandum of an employment to sell the property, written by him at the time in DuPerow’s office, that was not needed for the refreshing of his memory. The facts of the case will be found in DuPerow v. Groomes, 42 App. D. C. 287. On the new trial the evidence was substantially the same, save that Groomes testified that he made a memorandum of the employment to sell at the time, but the memorandum was not offered in evidence. Mr. Joseph T. Sherier and Mr. J. W. Cox for the appellant, Mr. Joseph D. Sullivan for the appellee. [MAJORITY — Mr. Chief Justice Shepard] Mr. Chief Justice Shepard delivered the opinion of the Court: It was not error to permit the plaintiff to testify to the fact that he made a memorandum. The court gave the case to the jury, following the law as laid down in the former opinion. Error is assigned upon the refusal of an instruction asked by the defendant. This relates to the good faith of Groomes, provided it was shown that he was the agent of DuPerow. There was no error in refusing the instruction, as it was not supported by the evidence. The question submitted to the jury was one of fact, on which there was a conflict in the evidence. The jury found for the plaintiff. The judgment must be affirmed with costs. Affirmed„