Horwitz v. Pepper

Decided December 3, 1901

Michigan Supreme Court · decided 1901-12-03

; Emerick, J. Assumpsit by Marks Horwitz against John Pepper to recover a commission on a sale of real estate. Prom a judgment for defendant, plaintiff brings error. This suit is brought to recover a commission for an alleged sale of real estate. Plaintiff was a manufacturer and dealer in cigars, residing in Alpena, and traveling over the adjoining country selling his goods. Defendant kept a hotel in Millersburg, a small village.

Relies on Friar v. Smith

Affirmed · Decided 1901-12-03

Grant, J.

¶1(after stating the facts). 1. The court very clearly instructed the jury in accordance with the rule in Friar v. Smith, 120 Mich. 411 (79 N. W. 633, 46 L. R. A. 229). There was evidence that neither the defendant nor his vendee had any knowledge that either was paying plaintiff a commission. Plaintiff, under his own testimony, was not a middle man, under the rule of that case. He negotiated the trade himself with the defendant, who did not know who the real vendee was until he had executed his contract to the plaintiff.'

¶22. Plaintiff was not a real-estate dealer, and never attempted to negotiate a sale before. This fact, and his relations and dealings with the defendant, were competent ■evidence for the jury to consider in determining whether, even under the plaintiff’s own statement, there was an implied contract of employment.

¶3Judgment affirmed.

The other Justices concurred.