Jacob B. Miller, Appellant, v. William Irish et al., Respondents

Jacob B. Miller, Appellant, v. William Irish et al., Respondents. (Argued December 17,1875; decided January 18, 1876.) On an issue as to whether A. was employed by B., it is competent for B to show conduct of A. during the alleged term of employment inconsistent with the theory of such employment. Such evidence is also admissible upon an issue as to the value of the alleged services. This action was brought to recover for services alleged to have been performed by plaintiff as real estate broker and as attorney at law, upon the employment of defendant, in negotiating the sale of defendant’s farm and in drawing the necessary papers. The complaint contained but one count, mingling the two employments together as a continuous service, and asking the usual broker’s commission on the amount of the sale as compensation. Upon the trial it was conceded that plaintiff drew the original contract between defendant and the purchaser and the deed subsequently executed in pursuance thereof, but defendant denied the employment of plaintiff as broker. Upon this issue defendant offered evidence of acts and declarations of plaintiff at a time some three months after the drawing of the contract, when the parties were engaged in surveying the farm, tending to show that plaintiff was then advocating and working for the interests of the purchaser and in hostility to those of defendant. This evidence was received under objection and exception. Held, no error; the court stating the rule as above, and also holding that under the pleadings and evidence it could not be claimed that the alleged employment as broker ceased when the contract was drawn, and so that the acts and declarations proved were not inconsistent with such employment ; also that the evidence was proper on the question as to the value of the services. W. C. Benton for the appellant. John Gaul, Jr., for the respondents. [MAJORITY — Per Curiam] Per Curiam opinion for affirmance. All concur; except Miller and Andrews, JJ., not voting- judgment affirmed.