x999-1" type="majority"> *305 Beach, J.

Four errors in the charge are assigned. The first relates to the instruction that if the plaintiff was in fact employed by the defendant to sell the real estate, the jury might consider him a broker. This was correct enough, but it was not essential that the plaintiff should be called by that name. The terms of the contract of employment and its performance by the plaintiff are alleged in detail, and, these being found true, the right to reasonable compensation follows. The court correctly charged on the effect of entering a nonsuit as to the defendant Mayer Kaplan.

Why the nonsuit was granted does not appear. Benjamin Kaplan’s own claims, as stated in the finding, expressly allege that both defendants discussed the proposed sale with the prospective purchasers, and agreed on the amount, interest, and terms of payment of a proposed second mortgage. This leaves no doubt that the entire interest of both defendants was offered for sale, and that the plaintiff was entitled to have the commission calculated on that basis.

The same finding disposes of the alleged error of the court in the charge as to this second mortgage, that it was sufficient if the owners gave the plaintiff the general terms on which they would sell, provided the details were afterward agreed upon between the owners and the prospective purchasers. The court correctly charged: “It is not claimed, nor does it .anywhere

appear, that any contract between the parties to this action was made on Sunday.” It does appear that the defendants themselves came to their final agreement with the prospective customers on Sunday, but the plaintiff’s cause of action is not based upon this contract, nor does the special defense have relation to it.

There is no error.

In this opinion the other judges concurred,

Citation profile

How this case has been treated — in progress