pellees knew, when the offer was made, that he was not the holder of the legal title to the property and could not sell it except by and with the consent of his wife. The lower court refused to submit that defense to the jury and instructed them to return a verdict for the plaintiffs if they believed from the evidence that the defendant agreed to pay the plaintiffs a commission of $260 to find a purchaser for the real estate mention As a general rule a broker is entitled to his commission who in good faith procures a purchaser willing, able, and ready to take the prop-ed in the petition. erty on the terms offered, though the sale fails because of a defect in the principal's title of which the broker had no notice. 2. Brokers 61(3)-Knowledge of principal's inability to convey property sold bars recovery for commissions. When a sale to a purchaser found by brokers failed because defendant's wife refused to convey, title being in her, if brokers or either of them knew, at the time of the sale that title was in the wife, and that he could not convey without her consent, they could not recover, and, there being evidence of such facts, an instruction to that effect should have been given. Appeal from Circuit Court, Bourbon County. Action by C. P. Mann and another against B. M. Renick. From a judgment for plaintiffs, defendant appeals. Reversed. Jno. J. Williams, of Paris, for appellant. MOORMAN, J. Appellees, C. P. Mann and Hiram Redmon, are real estate brokers at Paris, Ky. Appellant, B. M. Renick, authorized them to sell the residence occupied by himself and his wife on Duncan Ave., Paris, Ky., for $13,260, agreeing to pay them $260 as their commission for making the sale. The title to the residence was in Mrs. Renick, and the offer was made by appellant during her absence in Chicago. The appellees procured a purchaser willing, able, and ready to take the property upon the terms offered by appellant, but the sale failed because Mrs. Renick refused to accept the terms and to make the conveyance. A previous offer of $12,500 had been made by the prospective purchaser through appellees, but it was declined by appellant after receiving a telegram from his wife, which, with appellant's telegram to her submitting the proposition, was shown to appellees. Mrs. Renick having definitely declined to sell the property, appellees filed suit against appellant for the commission of $260, and on the trial of the case in the circuit court secured a judgment for the amount claimed. Appellant then admitted, and on this appeal admits, that he told the appellees that they might make the sale at $13,260, and that he agreed to pay them a commission of $260, but by his answer and by an instruction of fered he interposed the defense that the ap On this motion for an appeal the sole contention is that the court should have suppleImented the instructions given by telling the jury that, if they believed from the evidence that the appellees or either of them at the Having under consideration a somewhat similar question in Womack v. Douglas, 157 Ky. 716, 163 S. W. 1130, we said: "It is well settled that a party who makes a contract like this is liable for the whole of the compensation agreed to be paid, although he did not own the land he placed with the broker for sale, or only owned an interest in it, and was unable to carry out his contract because he did not own it, or because the other owners would not consent to the sale, although there might be an exception to this rule if the broker had knowledge of the fact that the person making the contract was not authorized to do so. Rounds v. Alee, 116 La. 345; Oliver v. Morawetz, 97 Wis. 332; Gorman v. Hargis, 6 Okl. 360." In 4 R. C. L. p. 213, the rule is stated as follows: "Accordingly, although it has been held that the fact that the broker knew of the defect in the principal's title and of the equitable estate of a third person therein would not defeat his right to commissions, the decisions generally hold that a broker who at the time he makes his contract with the owner knows of For other cases see same topic and KEY-NUMPER in all Key-Numbered Digests and Indexes 5. Brokers 71-Contract held not to authorize principal to rebate selling price. defects in the employer's title, or knows of [fect at the date of the contract or before the facts sufficient to put a prudent person on in- negotiation of the sale. quiry, which, if followed with reasonable diligence, would have resulted in such knowledge, is not entitled to recover where the sale fails because of such facts, unless it was the intention of the parties that the employer should subsequently perfect his title in order to be able to perform." We are convinced that this doctrine is sound. It is supported by the great weight of authority, as will be observed by an examination of the notes to Brackenridge v. Claridge & Payne, 43 L. R. A. 609, Yoder v. Randol in 3 L. R. A. (N. S.) 576, and Little v. Fleishman, 24 L. R. A. (N. S.) 1182. There was some evidence to the effect that appellees knew appellant did not have title to the property, and we think that de fense should have been submitted to the jury. The instruction offered by appellant correctly stated the law with reference to it, and also included a correct statement of appellant's liability and obligations under the contract sued on. It was error to refuse the instruction. The appeal is granted, and the judgment reversed for proceedings not inconsistent with this opinion. PRESTON v. RHEUBOTTOM. A contract for the payment to a broker as commissions of one-half of all money received above $2.50 per acre did not authorize the principal to reduce the broker's commissions by rebating the purchase price, after a sale was made, without his consent. 6. Brokers 71-Principal's right to rebate selling price, if any, held to extend only to the price of acreage to which title defective. If, under a contract to pay a broker as commission one-half of all money received above $2.50 per acre, the principal could rebate the selling price because of his defective title, by reducing the commissions, he could only rebate the agreed price of the acreage to which the title was defective. 7. Appeal and error 1171(2) Judgment not reversed for trivial excess in recovery. lex," a judgment of a broker for commissions Under the maxim, "De minimus non curat will not be reversed because, as claimed, defendant had a right to rebate the selling price, thereby reducing the commissions, where the record does not show that the right extended to more than one acre, on which the commission would be $1. Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Action by Allen Rheubottom against L. W. Preston. From a judgment for plaintiff, de (Court of Appeals of Kentucky. March 17, fendant appeals. Affirmed. 1922.) 1. Brokers 86(1)-Evidence held to make case for jury in suit for commission. In a broker's action for commission on a sale of oil leases, evidence held to make a case for the jury. 2. Appeal and error 1002-Verdict on con flicting evidence not disturbed. In an action to recover a commission for sale of oil leases where the evidence tending to support the contract and its performance was merely contradicted, the finding of the jury will not be disturbed on appeal. 3. Brokers 85(1)-Testimony as to an offer to cancel commission contract on contingency held properly excluded. Testimony that a broker offered to cancel a contract for commissions for the sale of oil leases if the sale was not made within 10 days contained no defense, since the offer was a part of the transaction resulting in execution of the contract, voluntarily made and without consideration, and the testimony was therefore properly excluded. 4. Brokers 61(4)-Commission not affected by failure of principal's title unless knowledge by broker shown. Where a broker's principal rebated a part of the purchase price by reason of his defective title to one of the leases sold, failure of title did not affect the amount of the broker's recovery, unless he had knowledge of such de Blakey, Davis & Lewis, of Louisville, for appellant. Ben F. Washer and Fred Forcht, both of Louisville, for appellee. THOMAS, J. On March 22, 1919, the appellant and defendant below, L. W. Preston, was the owner of 47 oil leases on various tracts of land in Barren county aggregating 3,983 acres. On that day he entered into a written contract with appellee and plaintiff below, Allen Rheubottom, by which he employed the latter as broker to sell all or a part of the leases upon terms stated in the contract of employment, which, in substance, were that the defendant should first receive $2.50 per acre for all the leases disposed of under the contract, and the parties were to then each share one-half of the surplus above that amount. In stating how the surplus should be shared, the contract says: "It is further understood and agreed that all money received over and above $2.50 per acre shall be divided equally between the parties hereto namely, L. W. Preston and Allen Rheubottom." And it was further agreed that plaintiff should pay all of the expenses incurred in efforts to make the sale, not to exceed the sum of $500. The contract was entered into in the city of Bowling Green, and the next For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S.W.) under the condition of the testimony as related, that the verdict is flagrantly against the evidence so as to authorize a reversal therefor. At most, the evidence is only contradictory, as is true in almost all contested cases, and which renders it the peculiar province of the jury to determine the truth of the matter, and its determination under such circumstances will not be disturbed by the courts. day the parties went to Louisville, and on | Surely it cannot be successfully contended, April 21 thereafter defendant closed a deal for the sale of so much of the leases as covered 2,000 acres with the Piedmont Oil Company through negotiations with W. M. Giltner, one of its officers, for the agreed price of $9,000, or an average of $4.50 per acre. Five thousand dollars of the purchase price was paid in cash upon the transfer of the leases, and $4,000 was agreed to be paid within a month or two thereafter, but $2,000 of the deferred payment was voluntarily rebated by the defendant, because of what he claims was a defective title to one of his leases which he designates as the "Star" lease. However, he did not allege, nor did he or any other witness prove, the acreage of that lease. Plaintiff filed this suit against defendant to recover his half of the $4,000 surplus of the purchase price above $2.50 per acre, upon the ground that his efforts were the procuring cause of the sale, and that he brought defendant and Giltner together, and that it was through his solicitations that the sale was effected. The answer contained a denial of the grounds of recovery, except the making of the contract was admitted, and in separate paragraphs it was averred: (a) That it was agreed at the time of the making of the contract that the right of plaintiff to effect a sale was limited to only 10 days thereafter; and (b) that on or about the 10th [3] It is next complained that the court improperly excluded from the jury competent evidence offered by defendant. He was asked this question: "Tell after the preparation of the contract what passed between you and Mr. Rheubottom, what conversation you had there and who was present." An objection was sustained to the question, and the avowal was: "If permitted to answer, the witness would state, and it is true, that after the contract between the plaintiff and the defendant was signcome to Louisville with him, and he thought ed that the plaintiff asked the defendant to that he could sell the leases, and that if he didn't sell them within a week or 10 days he would agree that the whole contract should be canceled." The same fact was offered to be proven by defendant's son, who drafted the contract, and we presume it was offered to sustain day of April, prior to the making of the sale, paragraph (a), supra, of the answer, to which the contract was canceled by agreement of the parties upon consideration of defendant paying one-half of the expenses incurred to that date. A demurrer was sustained to paragraph (a), and paragraph (b) was controverted by reply, and upon trial before a jury there was a verdict in favor of plaintiff for the full amount sued for, and defendant's motion for a new trial was overruled, and he prosecutes this appeal. a demurrer was sustained, although in another paragraph it was alleged that the contract was not canceled until April 10, as we have heretofore observed. Whatever the purpose was, the offered testimony contained no defense, since it was a part of the same transaction resulting in the execution of the contract, and the offer by plaintiff to terminate it at the expiration of 10 days was voluntary and without consideration. The court by a proper instruction submitter to the jury the defense relied on in paragraph (b) of the answer (which was denied by reply), and the verdict denied that defense, which finding is sustained by the evidence in the record. [1, 2] It is first insisted that the verdict is flagrantly against the evidence; but this contention is unsupported by any rule of practice prevailing in this court, Plaintiff and his witness Williams, who was interested in the sale, testified positively that plaintiff first approached Giltner about the sale of the [4] It is lastly insisted that the court erred leases and carried him to the room of defend-in giving to the jury instruction No. 2, which ant in the Seelbach Hotel and introduced says: him to defendant, when the parties began negotiations to effect the sale, and that after it was closed defendant promised to pay the demand of plaintiff when the deferred payment was collected. Their testimony is to some extent corroborated by the deputy sheriff who served the summons and who testified to admissions made by defendant at that time corroborative of plaintiff's contention. All of that testimony is, in substance, denied by defendant and Giltner, except they are somewhat evasive in their denials of the meeting in defendant's room in the hotel. "The court further instructs you that the fact that the title to one of said oil leases failed, and that by reason of such failure the defendant, Preston, rebated on the purchase price $2,000, cannot effect the commission to be paid to that he was the procuring cause of said sale." the plaintiff, if you believe from the evidence Instruction No. 3 properly defined the words "procuring cause," and we do not understand counsel as criticizing it. In disposing of this last contention, it may be said that, as a general rule, a broker employed to sell either real estate or personal property, ance. 2. Appeal and error 1062(1)—Submission to jury of question not specifically included in order of reference harmless, where finding was favorable to appellants. upon performance of his brokerage contract, | ment of debt within the period of limitations is entitled to his agreed commissions, not-held proper, under Civ. Code Prac. § 98, since withstanding there was a partial or an entire such reply did not change the cause of action failure of title which disabled the owner of pleaded in the petition, but was a plea in avoidthe property from carrying out the contract of sale, unless the broker had knowledge of such defective title, or of such facts as prudent inquiry would have revealed the truth concerning it at the time he was employed or before he negotiated the sale. 9 Corpus Juris, pp. 627, 629; Reid v. Thompson, 50 S. W 248, 20 Ky. Law Rep. 1887; Womack v. Douglas, 157 Ky. 716, 163 S. W. 1130; and Renick v. Mann et al. (Ky.) 238 S. W. 763, this day decided. There is no pretense that plaintiff at any time had any knowledge of the alleged defect of title in any of the leases, and, under the rule stated, the failure of the title and the rebate by plaintiff of a part of the purchase price on account thereof could not affect plaintiff's right to collect full commission. [5-7] But it is insisted that the above-quoted sentence from the contract limits plaintiff's commissions to one-half of "all money received over and above $2.50 per acre," and that the rebated $2,000 was not received, and he is, therefore, not entitled to recover any part of it. We are not inclined, however, to construe the contract as contended, since we are convinced that it was not intended therein to confer the right upon defendant to reduce plaintiff's commissions by rebating the purchase price without his consent. But, whatever may be the true interpretation of the language of the contract, defendant was not authorized thereby in any event to rebate or surrender any part of the contract price greater than the number of acres included in the defective titles, multiplied by the agreed sale price per acre, which in this case was $4.50. Since there is nothing in the record to show what that acreage was, it may not have exceeded one acre, in only $2 of the price of which was plaintiff entitled to share under the terms of his contract, and which share would be only $1, an amount too insignificant to authorize a reversal of the judgment under the maxim, "De minimis non curat lex." There being no error in the record authorizing a reversal of the judgment, it is accordingly affirmed. LAMKINS et al. v. CAMBRON'S ADM'RS. (Court of Appeals of Kentucky. March 17, 1922.) 1. Limitation of actions 192(1)-Reply, alleging acknowledgment of debt within period of limitations in avoidance of plea of limitations, held proper. Submission to jury as an issue out of chancery of a question not specifically included in the order of reference held harmless, where the finding was favorable to appellants, and was adopted in the judgment rendered. 3. Trial 374(2)-Chancellor not bound by findings of jury on question embraced in order of reference. The finding of the jury on question embraced in order of reference is not binding on the chancellor. 4. Trial 370(2)-Judgment by chancellor not assailable on ground that he did or did not submit issue to the jury. Judgment rendered by chancellor is not open to attack on the ground that he did or did not submit any issue to the jury. 5. Limitation of actions 148 (2)—Acknowledgment of debtor as to barred debt must raise implied promise. Where the action is upon a new promise to pay a debt that is barred, the acknowledgment by the debtor, if it does not contain an express promise, must be so positive and unqualified as unquestionably to raise an implied promise. Appeal from Circuit Court, Marion County. Suit by C. B. Cambron's administrators against Susie Lamkins and another. Judgment for plaintiffs, and defendants appeal. In action on notes in which defendants pleaded limitations, reply pleading acknowledg- Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S. W.) Ben Spalding and S. A. Russell, both of the petition and the sale thereof to satisfy Lebanon, for appellants. such lien in accordance with the prayer of the petition. H. P. Cooper, of Lebanon, for appellees. [1] On this appeal the first alleged error complained of is that the trial court permitted appellees to file a reply, in which they set up an acknowledgment of the indebtedness in 1914 and a promise at that time to pay it. On this point it is contended that a new cause of action was set up, and it was not proper to plead it in a reply. In support of this contention, section 98 of the Civil Code is cited, wherein it is provided a reply may contain a statement of facts which constitute an estoppel against or avoidance of, a set-off, counterclaim, or defense stated in the answer. Counsel also rely on Spiess' Adm'x v. Bartley, 130 Ky. 277, 113 S. W. 127, and other decisions of this court. These authorities, however, are inapplicable since the replies under consid MOORMAN, J. Appellees, R. E. Cambron and G. R. Buckler, as administrators of the estate of C. B. Cambron, sued appellants, Susie E. Lamkin and Wilfred Lamkin, in the Marion circuit court on three promissory notes of $310.42 each, dated February 12, 1897, bearing interest at the rate of 6 per cent. per annum, payable annually, and maturable, respectively, in 2, 3, and 4 years thereafter. The notes were given for deferred payments on a farm, sold to appellants in February, 1897, and secured by a lien on the land sold. Certain payments were alleged to have been made on the notes, and appellees asked for a judgment for the balance due, to be adjudged a lien on the land, and that it, or so much thereof as was necessary, be sold to satisfy the debt, inter-eration there were departures, and set up est, and cost. By answer appellants admitted the execution of the notes, but averred that they executed four notes for $310.42 each, of date February 12, 1897, due 1, 2, 3, and 4 years thereafter; that the first note was paid and surrendered to them; that the second note had been fully paid, but Cambron had refused to surrender the same; and that nothing had been paid on the third and fourth notes, and the alleged credits on those notes were placed thereon, more than 15 years after they had matured. They pleaded the statute of limitation as to the third and fourth notes. new and independent causes of action. The argument on this point fails to recognize the important consideration, that the plea of limitation is a personal plea, which a party may or may not desire to make, but if he does avail himself of it the opposing party may then plead in avoidance thereof. Yager's Adm'r v. President, etc., 125 Ky. 177, 100 S. W. 848, 30 Ky. Law Rep. 1287; Baker et al. v. Begley, 155 Ky. 234, 159 S. W. 691. The reply of appellees was a plea in avoidance, authorized by the section of the Civil Code referred to, which, if sustained, had the effect of defeating the presumption of payment and breaking the link in the running of limitation. Hopkins v. Stout, 6 Bush, 375. It did not, therefore, change the cause of action set up in the original petition, but constituted a matter of avoidance properly set out in a reply. By subsequent pleadings appellees admitted the payment of the second note, and also that the credits on notes 3 and 4 were written thereon more than 15 years after their maturity. By a reply appellees avoided the plea of limitation as to these notes by [2-4] The judgment is next attacked on alleging that in 1914, less than 15 years aft- the ground that it was improper to submit er the maturity of the two notes, appellants to the jury, as an issue out of chancery, any acknowledged to Cambron the indebtedness, question not specifically included in the oras evidenced by the notes, and promised to der of reference. The motion for an issue pay the same. The allegations of the reply out of chancery embraced the single inquiry were controverted. The trial court submit- as to whether appellants in 1914 acknowlted to a jury the question of whether appel-edged or promised to pay the indebtedness lants had acknowledged the indebtedness at covered by the last two notes? In addithe time alleged in the reply, and also that of whether at that time they claimed any credit not shown on the notes, and, if so, the amount so claimed. The jury found that appellants did acknowledge and agree to pay the indebtedness at the time alleged, and that they claimed a credit at that time on the indebtedness of $65. tion to that the trial court submitted the question of whether appellants at that time claimed any credit on the notes, and, if so, how much? It is said, therefore, that the special finding of the jury on the latter question is void, and on the first question is not binding on the court. No perceivable error was committed in submitting to the jury Accepting the finding of the jury, as a sat- the question, not embraced in the order of refisfactory determination of the questions sub-erence, for the finding on that question was mitted, the court entered judgment against favorable to appellants, and was adopted in appellants for $620.84, with interest there on at the rate of 6 per cent. per annum from February 12, 1897, less a credit of $65, with interest thereon from October 8, 1898, and adjudged a lien on the land set out in the judgment rendered. It is certainly true that the finding on the question embraced in the order is not binding on the court, but is merely advisory. This we have repeatedly held. However, the chancellor adopted |