Opinion.

in order for the plaintiff to recover the commissions sued for, it is necessary for them to prove the purchasers of the land complied with the terms of sale, by paying the one-fourth cash, and executing the deferred purchase money notes, as set forth in the contract between the plaintiff and the defendants, or offered to pay said cash payment and execute said deferred purchase money notes.

"Instruction No. 2. The court instructs the jury that if they believe from the evidence that the purchaser, M. D. Robertson, failed to pay the cash payment and execute the deferred purchase money notes, and such failure was not caused by any act of the defendants, then upon such refusal and failure on the part of said Robertson, the defendants had the right to reject the other sales made.

"Instruction No. 3. The court instructs the jury that they cannot allow the commissions sued for, but only the expenses mentioned in the contract between the plaintiff and defendant.'

The court refused to give Nos. 2 and 3 of such instructions; but modified instruction 1, by adding at the end of it the following: "unless the failure of the purchasers at the sale to pay the cash payment and execute the deferred purchase money notes was occasioned by some acts of the defendants"-and gave such instruction as so modified. This was the only instruction given.

R. L. Jordan and Jackson & Henson, for the plaintiffs in error.

Williams & Williams and M. P. Farrier, for the defendants in error.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court.

The questions presented by the assignments of error will be disposed of in their order as stated below.

Opinion.

[1] 1. Did the court err in admitting, or in refusing to exclude, the testimony above mentioned on the subject of the sales of the land made by the defendants subsequently to the auction sales made by the plaintiffs?

The question must be answered in the negative.

It is true that these sales were not made by the plaintiffs or to the same purchasers as those whom the plaintiffs had obtained at the auction sale, and, hence, the evidence in question was not admissible on that ground. But in view of the testimony for the plaintiffs, strongly tending to show that after the plaintiffs had fully performed on their part their contract with the defendants by the auction sale and the defendants had both expressed themselves satisfied with such performance, after knowing who the purchasers were and what character of contracts plaintiffs had obtained from them at the auction sale, the defendants did not, in good faith, make any effort to close those sales, but decided not to do so and abandoned them all, for the sole reason that the defendants found that they could sell the land at a substantially larger price by making the private sales which they did make shortly after the auction sale, it is manifest that the testimony in question was properly admitted.

[2] It is argued for the defendants that there was no evidence before the jury to show that Linkous knew who all of the purchasers at the auction sale were before he announced his satisfaction with such sale; and that he had the right to subsequently qualify his expression of satisfaction and confirmation of such sale, in agreeing to pay the plaintiffs their commissions, by the statement, which he claims to have later made, to the effect that such commissions would be paid "if the people" (meaning such purchasers) "came across.'

Opinion.

But, as set out in the statement preceding this opinion, we find ample evidence in the record, which was before the jury, warranting them in concluding that Linkous had been fully informed who all the purchasers at the auction sale were before he announced his satisfaction with the sale and confirmed the sale by consenting to pay the commissions, and that his testimony on the trial to the contrary was to be taken cum grano salis. This being so, even if Linkous, after confirming the sale as aforesaid, subsequently attempted to qualify his confirmation of the sale by adding, in the talk in the back room, that the commissions would be paid "if the people came across," that was too late to disturb the right of the plaintiffs to their commissions, since that right became fixed the moment the defendants in fact became satisfied with the price obtained at the sales by plaintiffs and confirmed such sales. They could not, nor could either of them, after having become satisfied and having confirmed the sales, at any time thereafter, as an afterthought, place a condition. upon such satisfaction and confirmation for which the contract makes no provision. Under the contract, an unqualified expression of satisfaction with and confirmation of the sales could not be be subsequently qualified.

[3] 2. Did the court err in modifying instruction No. 1 asked for by the defendants by the addition, "unless the failure of the purchasers at the sale to pay the cash payment and execute the deferred purchase money notes was occasioned by some act of the defendants?" The question must be answered in the negative.

It is urged in argument for the defendants that there was no evidence before the jury sufficient to show that any act of the defendants occasioned the failure of the purchasers at the auction sale to close their purchases

Opinion.

in the particulars mentioned in the addendum to the instruction under consideration. That position overlooks the testimony of the plaintiff, Miller, to the effect that Shumate, at the close of the auction sale, declared the purpose not to consummate any of the auction sales if it was found that a better price for the land could be obtained by subsequent sales to other purchasers; also overlooks the fact that the defendant, Shumate, failed to testify in the case; that he failed to comply with his purchases at the auction sale; and likewise overlooks the testimony with respect to the conduct of the defendant, Linkous, which shows, by his own admissions, indeed, that he made no effort whatever to close the auction sale purchases; and, too, overlooks the very pertinent fact that the defendants obtained an increase of price, amounting to $1,566.70, by abandoning the auction sales and making the subsequent private sales which they did make of the land. [4] 3. Did the court err in refusing to give instruction No. 2?

The question must be answered in the negative.

The subject of the instruction here in question was covered by the addendum aforesaid to instruction No. 1 as given.

[5] 4. Did the court err in refusing to give instruction No. 3?

The question must be answered in the negative.

From what has been said it is manifest that this instruction, if given, would have taken from the jury the question of fact submitted to them by the aforesaid addendum to the instruction which was given.

An interesting argument, accompanied by citations of authorities, is contained in the brief of the learned counsel for defendants, on the subject of the unconstitutionality of the section of the Virginia Code

Opinion.

(section 6003), forbidding the direction of verdicts, and urging that we should review and reverse our previous holdings on that subject and decide that the instruction No. 3, under consideration in the instant case, should have been given, notwithstanding the fact that it is a peremptory instruction. Inasmuch, however, as we have, for a different reason from that of the unconstitutionality of the statute mentioned, reached the conclusion above expressed with respect to the erroneous character of the instruction, it becomes unnecessary for us to deal with the constitutional question presented.

The case will be affirmed.

Affirmed.