#### W. L. NEVINS v. A. C. HUGHES.

(Filed 24 March, 1915.)

1. Trials — Instructions—Statement of Contentions — Objections and Exceptions — Appeal and Error.

Objection to the statement by the trial judge of the contentions of the parties, in his charge to the jury, must be called to his attention at the time, so that it can be corrected and conformed to the evidence, and ex- ' ception thereto taken after judgment will not be considered on appeal.

2. Trials — Conflicting Evidence — Questions for Jury — Instructions.

In this case it is held that the evidence is conflicting and the issues were properly submitted to the jury under proper and approved instructions from the court.

Appeal by defendant from Whedbee, J., at October Term, 1914, of Waxe.

Action for the recovery of $750, plaintiff’s part of the commissions for selling certain “timber and timber rights” belonging to the Deep River Lumber Corporation. Plaintiff alleged that the defendant, who is a real estate broker, had been appointed to make the sale, and .stated that his commissions would be 5 per cent on the purchase price, which had been fixed at $30,000, and that he would pay to plaintiff one-half of the commissions if he would make the sale; that the sale was made accordingly by him at the stipulated price, and that the contract on his part was fully performed, whereby he became entitled to his part of the commissions, or $750. Defendant denied all of this and, on the contrary, alleged that, if he offered one-half of 5 per cent, he made a mistake as to the amount of the commissions he was to receive; that there was an original contract, the terms of which were altered afterwards, and that when the contract was thus amended it was understood and agreed between all the parties, the timber company, plaintiff, and defendant, that no commissions would be paid for the sale, either to the defendant or by him to the plaintiff, and that this was fully understood and assented to by all the parties. There was evidence to sustain the contentions of the respective parties. The jury rendered a verdict for the plaintiff for $750, and from the judgment thereon defendant appealed.

*478 Gox & Gox for plaintiff.

P. J. Olive and II. E. Norris for defendant.

"Walker, I.,

after stating tbe case: Tbe only question in tbe case, as we view it, is one of fact. There are two exceptions, botb to tbe charge of tbe court. Tbe first is addressed to the statement by tbe judge of tbe contention of the plaintiff, and tbe ground of objection is that there was no evidence to support it; but upon a careful perusal of tbe testimony, we think otherwise. If tbe defendant thought that tbe statement was erroneous or calculated to mislead tbe jury, be should have called tbe court’s attention to it at tbe time, so that it could be corrected and conformed to tbe evidence. Jeffreys v. R. R., 158 N. C., 215; S. v. Cox, 153 N. C., 638; S. v. Blackwell, 162 N. C., 672; S. v. Wade, at this term. But we discover no such fault in tbe charge.

Tbe second exception was taken to an instruction to tbe jury, in substance as follows: If you are satisfied, by the- greater weight of'the evidence, that tbe contract was made as alleged by tbe plaintiff, and that be performed it, “in accordance with its terms,” in making tbe sale, tbe burden being on tbe plaintiff to so satisfy you, then you will answer tbe issue, “Yes; $750”; but if not so satisfied, you will answer it “No; nothing,” and tbe ground of tbe exception is not to tbe form of tbe instruction, for it could not well be, but that there was no evidence to warrant it; but we think that there was some evidence to support tbe entire charge, which was fair, full, and impartial, and presented tbe issues to tbe jury with clearness and precision.

Apart from these exceptions, tbe defendant testified that there was an • agreement, after tbe original contract was changed at Norfolk, that there would be no commissions; but tbe plaintiff in bis testimony contradicted this, and stated that it was understood and agreed that tbe same amount, as bis share of tbe commissions, would be paid to him, notwithstanding tbe alteration in tbe terms of tbe sale. This presented an. issue of fact purely.

Upon full consideration of tbe case, no error has been found. Tbe .jury have simply found tbe facts against tbe defendant.

No error.