#### LAMBRECHT *v.*STOEPEL REALTY CO.

1. Brokers — Commissions—Evidence.

In a case involving plaintiff’s right to recover real estate commissions, where one of the plaintiffs was asked if at any time an arrangement was made with defendant that they should receive less if they performed a part of the contract than if they performed the entire agreement, and after witness had answered, an objection was interposed by defendant and sustained, but, no motion being made to strike out the answer, it remained in evidence, prejudicial error did not appear.

2. Same — Implied Contract — Value.

And where brokers had an express agreement for compensation, it was not error to reject testimony as to the value of certain services performed in building on defendant’s property, and included by the terms of the express contract.

*82Error to Wayne; Murfin, J.

Submitted January 11, 1912.

(Docket No. 44.)

Decided March 12, 1912.

Assumpsit by Richard G. Lambrecht and others against the Stoepel Realty Company for commissions. Judgment for defendant. Plaintiffs bring error.

Affirmed.

*U. Grant Race*and *Walter 8. Haas,*for appellants.

*Charles K. Latham,*for appellee.

Moore, C. J.

The plaintiffs made sales of real estate for defendant. Upon some of the lots plaintiff had constructed buildings. The real estate was sold upon land contracts. Plaintiff made collections upon some of these contracts. This suit was brought to recover the balance of commissions plaintiffs claim were due to them.

The questions involved . are stated in the appellants’ brief as follows:

> “The aggregate amount of the sales on contracts was $31,200, of which amount the plaintiffs had collected $7,999.02, leaving a balance of $24,100.98. The bill of particulars shows the plaintiffs to have received and collected $2,154.95. Right here was the only question on which the parties differ. The plaintiffs claim the contract provided for an entire commission of 10 per cent, based on the selling prices. The defendant denied this, claiming that the commission was divisible — 5 per cent, for selling and 5 per cent, for collecting the contracts, looking after the property, etc. If plaintiffs’ contention was correct, then the plaintiffs’ entire commission was $3,120, leaving a balance of $965.05 due and unpaid. If the defendant’s claim was correct, then the plaintiffs were entitled to 5 percent, of $31,200, or $1,560, plus 5 per cent, of $7,999.02, the amount collected, or $399.95, or a total of $1,959.95, so that under the defendant’s theory the plaintiffs had been overpaid $195. This issue of fact was clearly defined in the pleadings. The plaintiffs declared specially on the contract and also on a *quantum meruit.*The defendant pleaded the general issue with notice that the contract provided for 5 per cent, commission for selling and 5 per cent, for collecting.”

*83The first assignment of error relates to the ruling of the court during the examination of Mr. Lambrecht. The record shows as follows:

> “Q. Was it ever stated to you at any time that a division of this contract should be made ? That, if you performed only a portion of the contract you were to receive less than the whole price therein stated ?

> *“A.*No.

> *“Mr. Latham:*I object to the question.

> “ *The Court:*I sustain the objection. (Plaintiffs except.)”

This ruling is said to be error. It will be observed that the question was answered. No motion was made to strike out the answer, and it still remained for the consideration of the jury. The record also shows that Mr. Lambrecht testified in detail as to the contract which was made. We do not think what occurred was reversible error.

Complaint is made because the witness was not allowed to testify as to the usual price real estate people obtained for building on account of a client, and because an objection was sustained to the following question put to Mr. Stoepel:

> “Do you know whether plaintiffs spent any money to advertise your property ? ”

Counsel say as to these questions:

> " The existence of an express contract being admitted, the only thing in dispute was, What was the commission provided for in the contract ? The value of the services rendered was admissible as tending to show whether the contention of the plaintiffs or defendant was the more probable, or, in other words, to show what was the contract the parties actually made.”

One trouble with this contention is that the arrangement about putting up the buildings was made after the express contract was made, and the parties are all agreed that the buildings were to be erected at cost by the plaintiffs who were building contractors as well as dealers in real estate. Counsel also say:

> *84“ The plaintiffs had the right (1) to join a special count on contract with the *quantum*meruit, and, having so declared, they had the right, under the *quantum meruit,*to show the value of their services, and (2) elect on which count they would proceed.”

An answer to this argument is, the plaintiffs made no such election. It was their claim in the court below, as it is here, that there was an express contract. Both parties were agreed as to that, but they were not agreed as to its terms. That question was left to the jury under a fair charge, and the jury found against the contention of the plaintiffs.

Judgment is affirmed.

Steers, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.