Elliott v. Maves

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 8*—when evidence sufficient to establish agency to exchange land. In an action to recover a broker’s commission for procuring a contract between defendant and another whereby defendant traded his store building and stock of goods for a tract of land, where the evidence was conflicting as to whether defendant made a contract of agency with plaintiff to bring about such exchange, but where plaintiff’s testimony was corroborated by that of another witness, evidence held sufficient to sustain a finding that such a contract was made.</p> <p>2. Principal and agent, § 83*—when evidence sufficient to establish that brolcer was procuring cause of sale. In an action to recover a broker’s commission for procuring a contract whereby defendant exchanged his store building and stock of goods for a tract of land owned by a certain person, where it appeared that plaintiff went with such person to the office of an attorney, where the contract was made after plaintiff had brought defendant to the same office, evidence held to sustain a finding that plaintiff was instrumental in bringing about the exchange.</p> <p>3. Principal and agent, § 69*—when agent entitled to recover commissions. In an action to recover a broker’s commission for procuring the exchange of property, where it appeared that defendant requested plaintiff to try to effect such exchange, and where it appeared that plaintiff was instrumental in bringing about such exchange, a verdict for plaintiff for the amount of the commission agreed on held proper.</p> <p>4. Instructions, § 46*—when instruction does not invade province of jury. An instruction that the jury “may” find for a party to an action under certain conditions does not make it mandatory on the jury so to find under such conditions.</p> <p>5. Instructions, § 162*—when modification by insertion of word “may” instead of “should” erroneous. In an action to recover a broker’s commission for procuring the exchange of property, where instructions requested by defendant, to the effect that under certain conditions the jury “should” find in his favor, were modified by the court by substituting the word "may” for the word "should,” instructions held correct as requested, the words “should” and “may” not having the same meaning as used in the instructions requested.</p> <p>6. Words and phrases—“should” and “may.” In some connections the words “should” and “may” have substantially the same meaning.</p> <p>7. Appeal and error, § 1565*—when modification of instruction by substituting word “may” for “should” not prejudicial error. In an action to recover a broker’s commission for procuring a contract to be made whereby defendant traded his store building and stock. of goods for a tract of land, where instructions requested by defendant that the jury “should” find in his favor under certain named conditions were modified by the court by substituting the word “may” for the word “should” as used in the requested instructions, held that the modification was not reversible error, although erroneous as not making it mandatory on the jury to find if they found the conditions named to exist, it appearing that the case was not close on the facts, and that the jury were not misled by the error.</p> <p>8. Appeal and error, § 1538*—when instruction omitting essential element not prejudicially erroneous. In an action to recover a broker’s commission for procuring the exchange of property, an instructions state the necessity of such a contract to entitle plain-would be entitled to a verdict, although erroneous as omitting the element of whether there was a contract for commissions between plaintiff and defendant, is not prejudicially erroneous where other instructions state the necessity of such a contract to entitle plaintiff to recover, and where the case is tried on the theory that such contract was essential to recovery.</p>