Harshman v. Mercer

⁵⁹⁶ Pattison, J., delivered the opinion of the Court. The declaration in this case contains four of the common counts and three special counts. The plaintiff by the special counts seeks to recover commissions for the sale by him of defendants’ lands. The first of these, the fifth count, is upon an alleged oral agreement, while the sixth and seventh counts were upon an alleged written agreement, dated August 26th, 1918, which is as follows: “Witnesseth, that for and in the consideration of a compromised settlement of an agreement dated December 27, 1917, for the payment of the commission on a certain farm, known as the ‘Cramer Farm,’ containing 200 acres, more or less, made this day, we, the said Charles D. Harshman and Ida G. Harshman, his wife, do give and covenant and agree with Grayson H. Mercer, that he shall have the exclusive sale of the aforesaid farm, on which we now live, at the time we desire to sell the said "farm and at the price we shall ask for the said farm, subject to the following terms and conditions : • “1.

That the said Charles D. Harshman and Ida G. Harshman, his wife, may sell said farm at any time, provided no commission is paid to any agent or attorney. “2. ■ That when they are desirous of disposing of the said farm, they will first list same with Grayson H. Mercer, agent for real estate, and inform him of the price and terms of sale acceptable to them, and of the time the sale is to be consummated. “3. That if the said farm is listed with other agents than the said Grayson H. Mercer, and sold by 'another agent than the said Grayson H. Mercer, the said Charles D. Harshman agrees to inform such other agent that the commission agreed upon or accruing from such sale shall be adjusted between the said Grayson H. Mercer and such other agent by whom such sale is made, so that but one commission shall be paid and that the said Grayson H. Mercer shall receive his share of said commission.” ⁵⁹⁷ The defendant pleaded ‘‘never promised as alleged” to the first four counts and demurred to each of the fifth, sixth and seventh counts. These demurrers were overruled and the defendants filed the general issue pleas thereto1. The case then proceeded to trial and as shown by the record, the plaintiff, at the conclusion of the evidence, offered three praveis.

Of these, .the first and third were granted and the second rejected. The defendants offered five prayers. Their first, second and fifth were granted and their third and fourth were rejected. The action of the Court upon each of the prayers is shown, not only by the prayers being marked "granted” or “rejected,” but also by the' docket entries found in the record.

The record, however, contains no bill of exceptions to the rulings of the Court upon the prayers, consequently its rulings thereon cannot be reviewed by us,on this appeal. Poe’s Practice, Sec. 312. There is no question presented by the appeal except the Court’s rulings upon the demurrers to the special counts of the declaration, and as it is shown by the record that the case went to the jury upon the sixth count of the declaration only, the jury having been told by the granted instructions of the Court that there was no evidence legally sufficient to- go to the jury upon the other counts, we have only to review the ('cult's ruling upon the demurrer to the sixth count of the declaration. The contention is made by the defendants that the sixth count of the declaration fails to allege that the