The foundation of plaintiff’s cause of action is an alleged agreement by defendants to pay him a commission of three-eights of all the purchase price over $30,000 for effecting the sale of standing timber on the lands purchased by defendants from G. E. Ransom.
The defendants excepted to the issues submitted and tendered other issues.
*703"We tbink tbe issues submitted present for decision of tbe jury sucb disputed matters of fact as arise upon tbe pleadings and not upon tbe evidence. "When sucb is tbe case, objection will not be entertained to tbe mere form in wbicb issues are submitted. If tbe issues are so formulated that each party to tbe action can introduce pertinent and competent evidence upon any material matter in a controversy, and put at issue by tbe pleadings, they are sufficient. Clark’s Code, cb. 2, pp. 311-393.
Tbe defendants excepted to tbe introduction of tbe deposition of P. D. Camp, upon wbat ground we are not informed in tbe brief. "We see no irregularity set out in tbe record, and tbe objection was properly overruled.
Defendants except to tbe court allowing tbe recall of plaintiff for further examination.
This is a matter resting in tbe sound discretion of tbe court, and not reviewable unless grossly abused, as bas been repeatedly beld by this Court. Tbe defendants moved to- nonsuit at close of tbe evidence. Tbe motion was properly overruled.
Tbe evidence of plaintiff, taken in its most favorable light for him, tends to prove that tbe defendants purchased tbe land and timber from G. E. Ransom for $60,000; that they contracted with one Palmer and plaintiff to sell tbe timber on tbe land; that tbe final and last agreement was to pay Palmer two-eigbts and plaintiff three-eights of tbe purchase money received for tbe timber over and above $30,000. Tbe evidence tends to prove that tbe timber was sold to P. D. Camp, trustee, and tbe Camp Manufacturing Company, and $39,007.44 received by tbe defendants therefor.
It is earnestly contended that plaintiff was not tbe agent of defendants in tbe sale of tbe timber and not an efficient cause in effecting tbe sale. There is evidence upon tbe part of plaintiff disclosing bis efforts to sell tbe timber, from wbicb tbe jury bad a right to- infer that be materially assisted in effecting a sale of tbe timber and that be fully performed tbe agreement upon bis part.
There are no assignments of error relating to tbe evidence, but quite a number to tbe charge and to tbe refusal of tbe court to give certain prayers for instruction. We have examined tbe charge as applied to each issue and tbink tbe learned judge presented tbe case to tbe jury fully and clearly and with perfect fairness to both plaintiff and defendants.
Tbe whole controversy seems to be largely one of fact, and in tbe trial of it we'find
No error.