#### Macneir, Appellant, *v.*Wallace.

*Contracts*— Sales *of stoclc*— Commissions—Judgment *for defendant n. o. v.*

1. In an action to recover a commission upon the sale of certain stock alleged to have been effected by plaintiff at the request of defendant where it did not appear that plaintiff was the efficient moving cause of the sale, and where it did appear that defendant had negotiated the sale himself, the court made no error in entering judgment for defendant n. o. v.

*Court and jury*— Verdict—Capricious *disbelief of testimony.*

*2.*A verdict which plainly indicates that the jury indulged in a capricious disbelief of the testimony should not be permitted to stand.

Argued Jan. 3, 1916.

Appeal, No. 176, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 449, for defendant n. o. y., in case of Edwin Macneir y. Robert Wallace.

Before Brown, C. J., Mestrezat, Potter, Stewart, Frazer and Walling, JJ.

Affirmed.

Assumpsit for commissions upon the sale of stock. Before Ralston, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $1,620.00. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.

*324
      *Errors assigned*were rulings on evidence and in entering judgment for defendant n. o. v.

*Latimer P. Smith,*for appellant.

*John Arthur Brown,*with him *Henry P. Brown,*for appellee.

February 14, 1916:

Opinion by

Mr. Justice Potter,

From the evidence in this case, it appears that defendant agreed to pay to plaintiff a commission upon all subscriptions which plaintiff should get, to the capital stock of the Wallace Automobile Company. Plaintiff suggested the name of George W. Bremer as a possible purchaser, but the record shows that he did not begin negotiations with him upon the subject, nor did he first bring the matter to the attention of Mr. Bremer. Nor did he make the sale of the stock to him. That was accomplished by the defendant. Mr. Bremer testified that he subscribed for the stock as a result of meeting Mr. Wallace, the defendant. That he then made an investigation and decided to purchase. Nowhere in the record does it appear that the plaintiff was the efficient, moving cause of the sale, and unless he was, he did not earn a commission. There was nothing in the agreement giving plaintiff an exclusive right to control the sale of the stock within any specified time. The mere suggestion of the name of a possible purchaser, without more, was not enough. Had plaintiff brought the parties together, for the purpose of effecting a sale, and if, his introduction, or his opening of negotiations had resulted in a sale, his commission would have been earned; but there is nothing in the evidence to justify that conclusion. The established principle that where an agent has commenced negotiations with a purchaser, the principal cannot, pending the negotiation take the matter into his own hands and complete it, has no 'application here. No negotiations were pending when defendant broached the *325subject to Bremer, nor did plaintiff first bring tbe matter to bis attention. As a matter of fact, the evidence tends to show that tbe inducing cause of tbe purchase by Bremer was largely tbe promise of a salaried position with tbe company, rather than tbe merits of tbe stock as an investment. We agree with tbe court below, that there was nothing in tbe testimony from which tbe jury could fairly find that plaintiff brought the parties together, or was in any way tbe immediate and effective cause in procuring Bremer’s subscription. On tbe contrary, tbe uncontradicted evidence shows that defendant, meeting Bremer accidentally, presented tbe subject, gave him full details tbe next day, bad other meetings with him thereafter, and finally induced Bremer to subscribe upon condition that be should have a salaried position with tbe company. Under these circumstances, the court below was right in entering judgment for tbe defendant non obstante veredicto. A verdict, which plainly indicates that tbe jury indulged in a capricious disbelief of tbe testimony, should not be permitted to stand: Walters v. American Bridge Co., 234 Pa. 7; Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610.

Tbe assignments of error are overruled, and tbe judgment is affirmed.