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McLaughlin v. Campbell.

78 N.J. L.

1

to the agreement of sale, deprive the agent of his earned commissions, and disappoint his claim for remuneration. As is succinctly expressed in the above quoted opinion in the Vreeland case, “if this could be done it is obvious the agent would, in all cases, be in the power of his employer, who, by taking matters into his own hands, could, at will, defeat the just expectations and equitable rights of the broker.” Under the facts disclosed in the case at bar, the defendant's liability to respond to the plaintiff for the commissions sued for was not at all dependent upon the circumstance of what parties formally entered into the written contract of sale offered to or engaged in by defendant, but wholly upon the fact as to who constituted the real parties to the bargain. This was, in effect, the instruction correctly given by the court to the jury.

The further denied requests to charge were made in the following terms, viz.: "A real estate broker not having an exclusive agency, irrevocable until withdrawn, has no claim for commission on a sale unless he introduces the purchaser to his client in such a way as to make it evident that such purchaser comes from him."

“Where property is placed with a real estate broker, for sale for a definite price, not to be modified except with his client's consent, he cannot claim commissions on a sale negotiated by his client for a less sum, either in reduction of price or by way of commissions to another broker, if the client has no knowledge that the person to whom he makes the sale was sent to him by the broker with whom he had put the property for sale." But it is settled by the authorities that the plaintiff's right of recovery is not dependent upon the knowledge of the defendant that the purchaser came to purchase in consequence of information obtained through the plaintiff. Vreeland v. Vetterlein, supra; Derrickson v. Quimby, 14 V room 373; Somers v. Wescoat, 37 Id. 551, 553; Sussdorff v. Schmidt, 55 N. Y. 320.

Also it must be remembered that the testimony in the case justified the jury in finding that the defendant possessed such knowledge. The judgment below should be affirmed.

49 Vroom.

Reed, Adm'r, v. Firemen's Insurance Co.

For affirmanceTHE CHIEF JUSTICE, GARRISON, SWAYZE, REED, TRENCHARD, PARKER, BERGEN, VOORHEES, BOGERT, VREDENBURGH, GRAY, DILL, CONGDON, JJ. 13.

For reversal-None.

LOUIS S. REED ET AL., ADMINISTRATORS, &c., DEFEND

ANTS IN ERROR, v. FIREMEN'S INSURANCE COMPANY
OF NEWARK, N. J., PLAINTIFF IN ERROR.

Argued July 6, 1909-Decided November 15, 1909.

In the trial of a suit, founded upon a fire insurance policy, to recover

for a loss, where the value of the insured property destroyed by fire was in controversy, an expert witness as to values of property was called by the plaintiff, and testified to his opinion of the value of the property in question at the time of the fire. Upon his cross-examination he was asked by defendant's counsel certain questions (set forth at length below) respecting the price at which he had sold the property about two years before the fire, and also questions relating to his interest in the event of the suit, which the court overruled ; and it was held error.

On error to the Hudson Circuit Court.

For the plaintiff in error, Leon Abbett and Alfred F. Skinner.

For the defendants in error, Samuel A. Besson and Joseph M. Roseberry.

The opinion of the court was delivered by

VREDENBURGH, J. The assignments of error brought up upon the record by the plaintiff in error are quite formidable in number (sixty-three), but, to answer present purposes, it is deemed sufficient to reach a result respecting only two of

Reed, Adm'r, v. Firemen's Insurance Co.

78 N. J. L.

them, the ninth and tenth errors complained of. This is a suit upon a fire insurance policy, dated October 9th, 1903, to recover for a loss by fire happening to two buildings in Hoboken, New Jersey, on February 23d, 1905. The plaintiffs, who are the legal representatives of the intestates, David F. Reed and James A. Reed, deceased, averred, and at the trial held before the Hudson County Circuit Court, produced evidence to show that their intestates had, at the time of the fire, an insurable interest in the property burned, as mortgagees thereof, and that the destruction of the buildings had been total. The immediate subject of investigation in dispute, presented by the testimony at the trial (in connection with which the rulings of the trial judge have been attacked), related to the value of the buildings at and before the occurrence of the fire.

David Engler, an expert witness upon such values, called by the plaintiffs, had been asked on his direct examination the following question, viz.: “Q. What, in your judgment, was the actual cash value of that property, of the two buildings together, at the time they were burned ?" and the answer was: "Well, I should judge them two buildings would be worth about $8,500."

Upon his cross-examination, which immediately followed, he was asked: "Did you not sell this property, including the houses and lots, for $8,000, on January 15th, 1903 ?”

Upon objection made by the plaintiffs to this question, on the stated grounds that it was "incompetent, irrelevant and immaterial, and that the question should be as to the market value," the court overruled it, against exception by the plaintiff in error.

This action of the court seems to us to have been clearly erroneous. If the witness had sold these buildings, including the land upon which they stood, about two years before the fire, for $8,000, the cross-examiner was certainly entitled to know from him his reasons for the difference between his judgment of values, as evidenced by his actual and recent sale of the property in question and his present opinion of

49 Vroom.

Reed, Adm'r, y. Firemen's Insurance Co.

their worth. The answer sought for from the witness to test the grounds of these seemingly widely variant estimates of value by him was so obviously the legitimate purpose and right of the cross-examination under the circumstances that further consideration here of the legality of the ruling of the court seems to be uncalled for.

Upon the witness' further cross-examination he was asked this question : “Mr. Engler, in case the plaintiffs in this suit should recover to the extent of $7,000, don't you expect to get one of that seven ?”

That the object of this question was to discover the witness' interest in the event of the suit was apparent on its face, and the attention of the court was expressly directed to the point by the cross-examining counsel in these words: "I think it should appear that we claim the right to ask this question, not only as a matter of defence, but as affecting the credibility of the witness.” The question was excluded by the court under exception by defendant.

This inquiry was certainly competent for the purpose (both apparent and stated) of showing the interest of the witness in the result of the action, and thus tending to reflect upon his credibility.

For these reasons the judgment below will be reversed and a venire de novo be awarded.

For affirmance-None.

For reversalTHE CHIEF JUSTICE, GARRISON, SWAYZE, REED, TRENCHARD, BERGEN, VOORHEES, MINTURN, BOGERT, VREDENBURGH, VROOM, DILL, JJ. 12.

Carmany v. West Jersey, &c., R. R. Co.

78 N. J. L.

GEORGE W. CARMANY, PLAINTIFF, DEFENDANT IN

ERROR, V. WEST JERSEY AND SEASHORE RAILROAD
COMPANY, DEFENDANT, PLAINTIFF IN ERROR.

JOSEPH T. PHISTER, PLAINTIFF, DEFENDANT IN ERROR,

v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT, PLAINTIFF IN ERROR.

Argued June 30, 1909-Decided November 15, 1909.

1. The plaintiff, while driving along a public highway, saw a shift

ing engine coming out of the railroad yards. He stopped his
horse and the engineer stopped his engine. The plaintiff, sup-
posing that the engine would remain stationary, started to cross
in front; just as he got in front the engine started, he turned
his horse, pulled by the engine and tried to get behind it; the
carriage skidded and struck the curb. The plaintiff was thrown
out and injured. Held-
(1) Although the railroad company may have bad superior
rights upon the highway, the streets having been dedicated with
the tracks delineated upon it, still it was the duty of the com-
pany to use reasonable care that the public in lawful use of the
same were not injured; that the engineer should have waited
until the plaintiff was safely across or have given some warning
that he intended to start.

(2) That the plaintiff was not guilty of contributory negligence. 2. A specific request to charge should be submitted to the trial judge

at or before the close of the evidence, and before the beginning

of the argument. 3. It is not error for a trial judge to refuse to enlarge upon some

thing he has already said in his charge to the jury, or to explain the meaning of an expression used by him.

On error to the Supreme Court.

For the plaintiff in error, Bourgeois & Sooy.

For the defendant in error, Thompson & Cole.

The opinion of the court was delivered by

VROOM, J. Both of these suits were brought against the railroad company to recover damages arising out of the same

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