While the defendant made no motion to dismiss at the close of the whole case, this conceded only that there were questions of fact to be decided. The defendant still has the right, espe*211daily- upon an appeal from the Municipal Court, to object that the decision upon these points is contrary to law or to the weight of-‘evidence. In this case the plaintiff had a right to recover commissions only if he earned them—that is, if he brought the minds of the parties together, so that vendor and vendee were in exact agreement upon all the terms of a contract of purchase. Concededly, the parties never signed a formal contract; but the plaintiff claims that the “binder” signed by the defendant shows that he was ready to sell upon the terms embodied therein, and he claims that the purchaser was ready, able, and willing to buy upon the same terms.
I certainly believe that the purchaser was ready and willing to perform. Many people are willing to sign a contract by which they can obtain another man’s property without payment for it; but it is quite incredible that any man should knowingly agree to sell an equity in real estate worth $16,000 upon terms that would allow the purchaser, by juggling the mortgage, to obtain the property at a total-cost of $5,000. The binder was drawn up by the plaintiff. The defendant apparently knew little of real estate, and trusted the plaintiff implicitly; Even according to the plaintiff’s story, he read the contract to the defendant.- He claims that he then explained the contract carefully to the defendant. Conceding, for the sake of argument, tliat he did explain its terms to the defendant, there is no possibility of believing that he made the terms clear to him. It is quite incredible thát a broker, realizing his duties, would even carry such a proposition in good faith to a purchaser. He knew that he was employed to sell the property, not to give it away. Upon the whole record, I feel that the jury’s verdict is based upon a misunderstanding of the evidence, and should be set aside.
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.