vantage of it. It was averred in the answer that respondent became disqualified, incompetent, and wholly unfit to properly discharge the responsible duty of conducting and operating the grain elevator to the reasonable satisfaction of appellant. The court apparently adopted the position assumed in the answer. No exceptions were taken to the charge, and counsel did not attempt to set the court right. Under such circumstances appellant is not entitled to any relief, if the jury were misled.

It is further claimed that the court erred in directing the jury to return a verdict for respondent for at least $150 upon the ground that there was an entire failure on the part of respondent to plead and prove that he had made an honest effort to obtain other employment. It was decided in Horn v. Western Land Association, 22 Minn. 233, that if in the interim the employee obtained other employment and compensation, inconsistent with his engagement under the contract, such fact constituted affirmative matter in recoupment, which was incumbent upon the defendant to set up and establish. That case was referred to and approved in Bennett v. Morton, 46 Minn. 113, 48 N. W. 678, where it was said: "Under this contract, if plaintiff was discharged without cause before the expiration of the term agreed on, his damages would be presumptively the amount of his wages, subject to be reduced by the compensation for other inconsistent employment engaged in by him, or which he had an opportunity of earning. This, however, is matter in recoupment, which it is incumbent on the defendant to set up and establish." Other jurisdictions have established the same rule. Hamilton v. Love, 152 Ind. 641, 53 N. E. 181, 54 N. E. 437, 71 Am. St. 384; Merrill v. Blanchard, 7 App. Div. 167, 40 N. Y. Supp. 48; Porter v. Burkett, 65 Tex. 383; 13 Enc. Pl. & Pr. 916.

The evidence was insufficient to sustain any counterclaim, and the other assignments of error have been examined and found not well taken.

Affirmed.

ELLIOTT, J. (concurring).

The justice who wrote the syllabus in the case of McMullan v. Dickinson Co., 63 Minn. 405, 65 N. W. 661, 663, evidently understood

that in an action of this nature the burden is upon the plaintiff to aver and show that he made an honest effort to obtain other employment. The statement to that effect in the syllabus is not justified by the opinion. This statement should be made, in order to avoid confusion.

DAYTON B. HOLCOMB v. FANNIE STAFFORD.1

October 18, 1907.

Nos. 15,352-(44).

Broker's Commission-Sale at Net Price.

The owner of real property agreed to allow a broker as a commission in effecting a sale thereof all he could obtain for the property above a fixed amount. Held that, to entitle the broker to a commission in such case he must produce a purchaser ready, able, and willing to purchase the property for a price exceeding the amount fixed by the owner. He is not entitled to the reasonable value of his services, where the purchaser produced by him is willing to pay no more than the price so fixed by the owner, though the property be sold to him.

Findings-Evidence.

Findings of the trial court held sustained by the evidence.

Action in the municipal court of Minneapolis to recover a commission for services in making a sale of real estate. The case was tried before Waite, J., who found in favor of defendants. From an order denying a motion for a new trial, plaintiff appealed. Morley & McElmeel, for appellant. Geo. E. Young, for respondent.

BROWN, J.

Affirmed.

Action to recover a commission alleged to have been earned by plaintiff on the sale of certain real property for defendant. The cause. was tried below without a jury, resulting in judgment for defendant, and plaintiff appealed from an order denying a new trial. The only

Reported in 113 N. W. 449.

question presented in this court by the assignments of error is whether the findings of the trial court are sustained by the evidence.

Defendant owned certain real estate in the city of Minneapolis, which she offered to sell for $500 net to her, and agreed to allow plaintiff as a commission in procuring a purchaser all he could obtain for the property in excess of that amount. Under the terms of his agreement plaintiff could claim a commission only in the event he procured a purchaser for the property at a price in excess of $500; the excess being the measure of his commission. If he procured no purchaser ready, able, and willing to pay more than that amount, he earned nothing, and the court correctly awarded judgment against him. Antisdel v. Canfield, 119 Mich. 229, 77 N. W. 944; Beatty v. Bussell, 41 Neb. 321, 59 N. W. 919; Ames v. Lamont, 107 Wis. 531, 83 N. W. 780. Plaintiff procured a purchaser to whom defendant sold the property for $500.

It was contended on the trial below that the purchaser to whom defendant made the sale was induced to buy the same by the efforts of plaintiff, and agreed to pay therefor the sum of $525; that, when he was presented to defendant as a purchaser, she was so informed; and that, notwithstanding this agreement, defendant finally closed the sale at $500. If this were an undisputed fact in the case, plaintiff would be entitled to his commission. If the purchaser to whom defendant sold the property in fact agreed to pay more than $500, as claimed, and defendant was informed of that fact before completing the sale, and she deliberately took a less sum, she would be liable. But the asserted fact was not undisputed. Defendant denied that the purchaser agreed to pay any amount in excess of $500, or that she was ever informed that he had so agreed with plaintiff. On the contrary, she testified that the purchaser at all times refused to pay more than $500. This put in issue the contention of plaintiff and presented a question of fact for the trial court. The court resolved it against plaintiff, and our examination of the record leads to the conclusion that the finding should not be disturbed. A discussion of the evidence would serve no useful purpose.

The case of Hubachek v. Hazzard, 83 Minn. 437, 86 N. W. 426, is not in point. There the brokers' agreement entitled them to a commission of $300 for procuring a purchaser at an agreed purchase price,

which price the owner subsequently reduced in closing a sale brought about by the brokers. Here the broker was entitled to the excess over and above the net price to the owner, and he was not entitled to a commission, except on procuring a purchaser ready, able, and willing to pay more than that price. Defendant was under no obligation to make an effort to induce the purchaser to pay more than the price given plaintiff. The burden was upon plaintiff to bring forward the purchaser, and he was not entitled to the reasonable value of his services.

Order affirmed.

ELLEN M. HAVER v. CHARLES HAVER.1

Divorce-Cruelty.

October 18, 1907.

Nos. 15,364—(86).

In this, an action for a divorce on the ground of cruel and inhuman treatment, it is held that the finding of the trial court to the effect that the defendant was not guilty of the charge is sustained by the evidence, and, further, that the court did not err in receiving evidence tending to show the conduct and manner of life of the plaintiff.

Action in the district court for Hennepin county for divorce. The case was tried before Dickinson, J., who found that defendant was entitled to judgment that the action be dismissed. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.

M. A. Jordan and E. R. Lynch, for appellant.

J. M. Pulliam, for respondent.

START, C. J.

This is an appeal from an order of the district court of the county. of Hennepin, denying the plaintiff's motion for a new trial in an action for an absolute divorce on the ground of cruel and inhuman treatment. The plaintiff alleged, in substance, that the parties were married July 28, 1891, and have three minor children; that between Sep1Reported in 113 N. W. 382.

tember, 1898, and September, 1906, the defendant on different occasions called the plaintiff vile and indecent names, refused to furnish her medical aid when ill, and at times necessary provisions for herself and children; that he repeatedly and with great violence forced the plaintiff from their house and home and locked the door, so that she could not return, and she was forced to take refuge at the house of her neighbors; that he threatened to get a revolver and kill her; and, further, that by reason of such treatment by the defendant her health has become seriously impaired. The answer, after admitting the marriage, names and ages of the children, and that the defendant at times, when provoked thereto by the conduct of the plaintiff, lost his temper and used words towards her which he ought not to have used, put in issue the allegations of the complaint as to his treatment of the plaintiff. The trial court, after hearing the parties and their respective witnesses, found that the allegations of cruel and inhuman treatment made by the plaintiff against the defendant were not true, and as a conclusion of law directed judgment for the defendant dismissing the action.

The first contention of the plaintiff is, in effect, that the finding of the trial court that the charges of cruel and inhuman treatment made by her against the defendant were not true is not sustained by the evidence. The testimony of the plaintiff tends to support the allegations of her complaint, and she is corroborated in many particulars by other witnesses. The testimony of defendant tends to show that he was not guilty of the acts of violence towards the plaintiff to which she testified. His testimony is corroborated in some particulars by other witnesses. He did not deny that he had, at times, when angry, used profane and improper language in speaking to and of the plaintiff; but, if his testimony is true, she excited his anger by her own misconduct, although it did not justify his language. The credibility of the witnesses was a question for the trial court, and the evidence. was conflicting. Such being the case, the findings of fact by the trial court must be held conclusive, as in ordinary cases of the trial of issues of fact. The finding of fact of which the plaintiff complains is amply sustained by the evidence.

The plaintiff further contends that the court erred in receiving evidence, over her objection, to the effect that the parties had trouble