Baker et al. v. Bakewell. given instructions Nos. 2 and 3 (Abs., p. 61). (b) It was also misleading. BECKER, J.-This is an action by plaintiffs against the defendant seeking to recover on an alleged contract. Judgment resulted in favor of plaintiffs and against the defendant in the sum of $1525, and the defendant appeals. All the parties to the action are engaged in the real estate business, and prior to October 8, 1914, appellant Bakewell was the exclusive agent of one F. H. Britton for the sale of a certain piece of real estate. Plaintiffs alleged in their petition that on or about October 8, 1914, appellant Bakewell, entered into an agreement with the respondents whereby he agreed that if the respondents would disclose to him the name of a person or institution that would likely purchase the said Britton property, or introduce such person or institution, or its authorized officer or representative to him, that, in the event of a sale of the said Britton property to such person or institution, during the period of time for which the said Bakewell had his exclusive sales contract for said property, he would pay the respondents jointly the sum of one-half of five per cent. of the purchase price, such five per cent. of the purchase price being the commission provided for in Bakewell's contract of exclusive sale of the said real estate; that in conformity with such alleged contract the respondents on or about October 9, 1914, disclosed to Bakewell the name of the Ursuline Convent and Academy as a prospective purchaser of the said Britton property, and introduced the said authorized representative of the convent to Bakewell and assisted Bakewell, at some expense to themselves, in showing said property to such representative. That some time after October 8, 1914, and before the expiration of the time limit of Bakewell's exclusive sales agency contract with Britton, the sale of the property was made to the said Ursuline Convent and Academy for $61,000, and thereby plaintiffs below, re Baker et al. v. Bakewell. spondents here, became jointly entitled to said one-half of five per cent of $61,000, amounting to $1525.00, for which judgment was sought against Bakewell, defendant below, appellant here. The answer admitted the exclusive contract of sale of the particular property in question as being in Bakewell and denied each and every other allegation in plaintiffs' petition. According to plaintiffs' contention the condition. upon which they were to receive the division of the commission was for merely disclosing the name or introducing a person to the defendant who would be likely to purchase the said property, and that if such person did, at any time during the term of the exclusive sales contract held by Bakewell, purchase the property, then they were to receive one-half of five per cent. commission; while defendant's version of the agreement is that plaintiffs were to secure a purchaser for said property within the time limit specified in the exclusive sales contract before they should become entitled to one-half of five per cent. commission. On behalf of plaintiffs Charles A. Baker testified that he was one of the plaintiffs, was in the real estate business, and that A. C. Dixon, also one of the plaintiffs, informed him about the first of October, 1914, that the Ursuline Convent and Academy were in the market for twenty-five or thirty acres of ground, preferably in the vicinity of Kirkwood or Webster; that the witness knowing of the Britton property located in that neighborhood being for sale, suggested it as property that might be suitable; that he had noticed defendant Bakewell's sign upon the Britton property and the following day went to see Mr. Bakewell and was informed by Bakewell that he had an exclusive agency contract for the sale of the property at the price of $65,000; that Bakewell stated he was anxious to make a sale of this property because his agency was about to expire and asked the witness to give him the name of his prospective purchaser, which witness declined to do without Consulting Mr. Dixon and the Haydel Realty Company, Baker et al. v. Bakewell. with whom he was associated in the matter; that he did, however, volunteer the information that it was a Catholic educational institution, whereupon Bakewell stated that he was a Catholic and believed by reason thereof he could be of more use than the witness in making the sale, and said "if you will give me the name of the institution I will give you one-half of the five per cent. that I am entitled to if the sale is made to that party;" that the witness replied that he would rather not give the name until he had consulted his associates, to which Bakewell replied: "All you will have to do is to give me the name of this party. I am a Catholic, my father is a very prominent Catholic and I am sure that I can be of more service in making the sale than you could without me, and all I want you to do is to give me the name. Whether you get the contract for the sale, or whether you get the earnest money or not, it will make no difference at all. If the sale is made to the institution whose name you give me, I will give you one-half of that five per cent, that I am entitled to." The witness did not disclose the name at that time but agreed to introduce his associates to Bakewell, which he later on did, with the result that they did disclose to Bakewell the name of the prospective purchaser. That in the early part of December the witness had a conference with Bakewell in which Bakewell said: "Mr. Baker, I am glad you have come in here, I have some things to tell you. Sit down. Mr. Thomas has 'butted in' and has made this sale. that the sale price was $61,000, and that he, Bakewell, would not get his regular commission, but that Thomas would get the commission and that Baker and his associates would have to go to Thomas or to Mr. Britton for their commission as he, Bakewell, did not get that much himself; that thereafter the witness and Mr. Haydel and Mr. Dixon called on Bakewell and demanded the payment of one-half of five per cent. commission, which Mr. Bakewell refused and that the witness on December 21st wrote a letter to the defendant demanding the commission. Baker et al. v. Bakewell. On cross-examination the witness admitted that in his deposition which had been previously taken, he had been asked what had been said by him and by Mr. Bakewell in their conference on or about the 10th day of October, 1914, and that he had answered: "I said, 'Mr. Bakewell, you have a sign on the Britton property at Oakland; what kind of an agency have you?' Mr. Bakewell replied, 'I have an exclusive agency and my commission is five per cent, and if you get a buyer, if you have a buyer, I will divide the commission with you.'" And when asked whether that was a true statement of the facts, he replied, "Essentially." And on redirect examination, and after the above cross-examination, as the above excerpts of his disposition Mr. Baker testified and admitted other things which he had testified to in said deposition, among others that Mr. Bakewell had told him, "that it made no difference whether he got the contract or earnest money for the sale, if he would name a purchaser, and that if the deal was closed he would receive his one-half of the five per cent. commission for which he had a contract with Britton." The deposition of Henry H. Haydel was introduced on behalf of the plaintiffs and read to the jury. He testified that he was the president of the Haydel Realty Company; that on two or three occasions he went to the office of Bakewell, in company with plaintiffs Baker and Dixon, with reference to the sale of the said Britton property, and at one of the conferences Mr. Bakewell stated that, "he had a full commission and that he was willing to divide with us, Mr. Baker having brought him a prospective purchaser, I don't know whether by name or otherwise, some weeks before that, and he would give us one-half commission on his total five per cent." The witness further testified that Bakewell did not say on what terms he would divide the commission, or what they were to do to earn one-half of it, excepting, "that it was understood we were to furnish a purchaser." Baker et al. v. Bakewell. On cross-examination the witness testified that after the Britton property was submitted they had made no further effort to see other property or to offer other property to the convent, than that of the Britton prperty. A. C. Dixon testified that he was one of the plaintiffs, and was engaged in the real estate business; that in connection with Mr. Haydel he had been trying to sell property to the Ursuline Convent and Academy since July, 1913, and up to October, 1914, had not succeeded; that in the latter month he had called upon plaintiff Baker to see if he had any property suitable to the needs of the convent; that Baker had submitted several pieces of property but all were too high priced, and that finally Baker suggested the Britton property as the best he knew of and gave the witness a letter of introduction to Bakewell; that the witness called upon Bakewell and that Bakewell showed him his exclusive sales contract and said, "he would give us two and one-half per cent. and requested that he be permitted to go and see our client," and that "after telling who the client was he would divide the commission just the same, just the same; to give him the name of the client." "We would get our commission just the same if the sale was made," if they would name the client; that the witness thereupon did disclose the name of his client but did not give Bakewell the privilege of going to see the prospective purchaser; that the name was disclosed only after appellant had made his proposition, but it was in the same conversation; that there was nothing said in said conversation about the witness or his associates being required to produce a purchase contract or purchase money deposit; that all that was said was, "You tell this buyer and we will give you half of the commission." At the close of plaintiffs' case defendant offered an instruction in the nature of a demurrer, which the court refused; whereupon the defendant introduced Dr. Frank J. Lutz, as a witness, who testified that he had spoken to the sisters of the Ursuline Convent and |