Westney v. Lyon , 279 Pa. 291 ( 1924 )

Per Curiam,

This is an action in assumpsit on an alleged contract to split the commissions paid to defendant as broker in the sale of a certain piece of real estate. Defendant collected a commission of $6,500, of which plaintiffs demanded, and sued to recover, one-half, contending that defendant had agreed so to divide his commission with them. Defendant denied the making of any such agreement, but the jury found against him; judgment was entered on a verdict in favor of plaintiffs and this appeal followed.

In support of the denial of the alleged agreement, counsel for defendant offered testimony by one of his witnesses that the latter “had an arrangement with [defendant] to receive one-half of whatever commission might be obtained by him......for the purpose of showing that it was altogether improbable that defendant would have made any other arrangement with the plaintiffs in this suit that would have left him high and dry and put him in the position whereby he would have two outstanding contracts and would have nothing remaining for himself on a piece of business which required his services and attention.” We cannot hold that the trial judge erred in refusing this offer, for, even if the evidence was admissible on the theory tendered (a point we do not decide), the offer is merely to show defendant was to give the witness one-half of “what might be obtained by him,” not one-half of the entire commission paid by his client; therefore it would not follow that “he would have nothing remaining for himself.” If the purpose of the offer was to show an agreement on the part of defendant to pay the witness one-half of the entire commission, that should have been made plain; for, on review, all intendments must be taken in favor of the correctness of a ruling attacked.

The judgment is affirmed.