The morning call., 1895-01-06
FOR THIRD TRIAL.
The Case of Mattingly
VS.. Blythe.
JUDGMENT AGAIN REVERSED.
First Blythe Was Successful,
Then His Opponent.
WHAT THE SUPREME coURTsAYs
There Was Not Sufficient Evidence
of a Contract Binding Blythe
to Sell His Stock.

bly, he, deceased.
This was an action to recover the sum of
S125.000, commissions for the sale Of min
ing stocks. Mattingly claimed that by
written contract with Blythe he was au-
thorized to negotiate a sale OF stocks for
$500 1000, and was TO receive as his COM
mission all that be could obtain for the
stock above that price; that he procured
purchaser at the net price OF $425, 600,
who was ready, willing and able to pay
that sum for the stocks, and that Blythe
refused to make the sale or convey the
stock to the purchaser.
The case was tried before jury, and
verdict rendered for the defendant ad.
minis rator. Mattingly appealed to the
Supreme Court. and the Judgment was re-
versed and the case remanded for new
trial line case was once more tried be-
fore jury. with the result that verdict
was obtained for the plaintiff Mattingly
for the full amount claimed. THIS time
the defendant appealed. alleging errors in
the courts instructions to the jury and
the nsufficiency of the evidence to Justify
the verdict. The Supreme Court now
orders third trial of the case.
1t was con tended by Mattingly in reply
to this second appeal that the question of
insufficiency of the evidence was decided
In his favor on the former appeal; thai his
(Mattlngly's) evidence was substantially
the same OIL the last trial as on the first,
and that the decision ON that point had be-
come the law of the case
The Supreme Couri, however, decides
that this is not so. at is settled beyond
controversy" says the court, that deci-
sion of this court on appeal as to question
of fact does not become the law Of the
case" and the court opines that the point
now presented is not the same as that so
supposed to have been decided ON the
former appeal.
''On the former appeal defendant was
not entitled to dispute the rulings of the
court below or the theory on which the
case had been submitted TO the jury, The
verdict being in his favor he could not
assign error, and on the plaintiffs appeal
we were bound TO assume the correctness
OF the instructions given at plaintiffs re-
quest. Those instructions. whether cor
rect or otherwise. were binding upon the
jury, and plaintiff was entitled 10 a YER
dict in accordance with those instructions
If the evidence warranted it. On that APP
peal, therefore, the only question which
we could possibly consider as to the suffi-
cheney of the evidence was whether the
evidence was sufficient, under he instruc-
tons actually given and not objected to
by plaintiff. to have supported verdict in
his favor bad one been rendered.
The instructions given by the court to
the jury are then considered and CON-
mented upon. One was to the effect that
"the authority given by Blythe TO Mat
tingly to sell the stock of the Blue Jacket
Mining Company for not less than $500. 600
did not authorize Mattlngly to execute in
Blythe's name any contract with a pur-
chaser. or to bind Blythe to purchaser.
but only to procure purchaser" The
court decides this instruction to have been
understood by the jury to mean that Mat
tingly would fully perform the conditions
of his contract with Blythe and earn his
commission by merely obtaining from
purchaser a verbal bargain to buy the
stock.
Another instruction was that If the jury
believed that Mattingly found aready pur-
chaser and informed Blythe in proper
time ana then Blythe refused to make the
sale Mattingy could recover.
The Supreme Court says these decisions
do not correctly state the law. In order
to eniitle broker, under such contract.
to recover commissions where sale has
been ally contaminated, tits incumbent
on him to prove that he found purchaser
ready, willing and able to buy the property
on the terms fixed, and either that he pro-
cured from that person valid contract
binding him to purchase the property upon
those terms. OF that he brought the execu-
tor and the proposed purchaser together,
so that the executor might have secured
such CONTRACT. if he desired. On no other
terms can he recover.
Secondly, it is held that the evidence
did not justify the verdict. The evidence
show only that Mat,ingly found person
IN London who offered verbally to pur-
chase the stock; that he communicated
that fact TO Blythe, without in any way
naming or poin ting out the purchaser, and
that Blythe refused to make the sale. No
contract was obtained from the supposed
purchaser which could bind him in any
way, nor was it shown that Blythe was
aware who he was. or did anything TO
prevent Mattingly from performing the
conditions of the contra act
Further, 1t is held that the evidence was
insufficient 10 show that Blythe repudl-
ated be contract or ever refused to sell the
stock as he had agreed. IL was also In
sufficient TO show that the supposed pur-
chaser had the ability to purchase the
stock at the price named. There was only
his own testimony on this point wherein
he stated that he made the purchase on
behalf of Syndicate" and expected TO
obtain the necessary funds from that syn
dictate.
There are other minor objections dis
cussed, and in conclusion the court says:
1.-THE appeal from the Judgment. having
been taken more than one year alter the
entry of Judgment is dismissed. The order
denying new trial is reversed, and the
cause remanded for a new trial"
The opipion is written by Justice Van
Fleet, and concurred in by Justices Me-
Farland and Fitzgerald. Chief Justice
Beatty and Justice Harrison, being dis
qualified. did not participate in the de-
cisiOn.
Attached to the decision of the court is
a concurring opinion written by Justice
Garoutte.
The motion of Henry E. Righton to re-
duce the judgment of judge Coffey lD1the