, 1892-06-01
REAL ESTATE SALE.
Graves VS.. H. L. Griffith Reality
& Banking Company.
Agreements in the sale of the Cow
ernOr SempIe Property The
Decision of the Lower Court
Affirmed.
[OonoIuded from yesterdayl

Concluded from yesterday
Mr.. Ross who, acting for defendant
made the contract with plaintiff, sWears
positively that the understanding was, and
that he told plaintiff in so many words
that hewOuld get the property for sale II
he could and in case he did, and plaintiff
could obtain a purchaser for 1t, he, the
plaintiff, could have as commission fOI
all he could make over three thousand
three hnndred dollars; while the testi-
mony of the plaintiff is equally positive
that there were no conditions or cOntin-
gencies; but that the express contract was,
that if plaintiff could procure purchaser
for the property for the sum of three
thousand five hundred dollars, that defen-
dant would pay him the sum OF two hun
dred dollars; that he thought the defendant
had the property for sale. The following
extract embOdies the essential part of his
testimony on this point:
81 found Mr.. Burret and asked him if
he wanted to get snap on easy payments,
and | could take the property and turn
it over and make him some money;
he looked it over and he says,
Yes, l will take it at that rate I
took Mr. Burrett on the 10th day of August,
1859, into l.. H. Griffith Realty & Bankinc
Company's Office, and Introduced him I
Mr.. Ross, and he says "all right" NJ.
Burrett goes out and goes to the bank to
get the money, but when Mr.. Burrett was
gone to the bank, Mr.. Ross says "That
man has got lot of money!" he says He
is pretty well fixed :" he says 81 think
have got snap for him that he can make
some money out Of" Well Mr.. Burrett
came back and he says Il can't deliver
that property" That is the first time
knew anything about it. He says 81 have
got to write to Governor Semple. will
write to him right away. guess it will be
all right" That is the first time 1 knew
he could not deliver the property. had
been working there nine or ten days on it. {"
There is also fiat contradiction between
the testimony of Burrett and Ross. Mr.. Bur-
rett, after relating his talk with Graves,
the plaintiff herein testifes as follows:
80 | and Mr.. Graves went in and talked
with Mr.. Ross. asked him if be had the
property for sale, and he said he had. He
stated the terms just as Mr.. Graves did.
Says 1, 81 will take the property; I have
got to 90 and draw the money to make the
first payment; while l am gone you may
make. out the papers" l tOlu him, ''While
am gone for the money, make out the
papers," He was to make out the papers,
understand, himself l said, 81 will go and
get the money and make the first pay
ment, and then glYe you mortgages Just as
you ask for" he says, "All right, 1 will
make out the papers while you are gone"
l says, 81 won't be gone but little while"
and when 1 came back in he says, 81
don't know whether 1 can deliver this
property Just now or not; JnlnK you Will
have to wait until tomorrow; Ihave got to
telegraph to Governor Semple and find out
about It," ''Well," says L, Il had the
money in my hands," etc., etc.
The witness then testified that he called
several times after the request of Mr.. Ross,
but was always informed by Ross that he
had not yet heard from the governor, and
finally, after long time, the matter was
dropped. While Mr.. Ross testities that
when Mr.. Burret called he informed him
that Semple would not sell the property;
that he read him Semple's letter to that ef-
feet; that there was no talk about making
out any papers, and that Mr.. Burret did
not go out of the Office and come back
sgain that he did not bring any money
into the Office, nor state that he would get
any, and that he never called at the bank
again for any purpose. Mr.. Burret testified
in rebuttal that Mr.. Ross did not read to
him letter or part of a letter from Gov,
ernOr Semple. The testimony Of the other
witnesses in the case does not seem to be
material. So that it can plainly be seen
that this is a case of irrecOncilable conflict
of testimony; and case peculiarly apprO-
propriate for the exercise of Judgment by
judge or jury who had an opportunity Of
seeing and hearing the witnesses, and Of
judging of the truth of their statements by
their appearance on the witness stand, and
their manner Of testifying, The judgment
will be affirmed. DUNBAR, ].
We concur: Anders, c. j.; Hoyt, J.;
Stiles, j.. Scott, ].