WINTERS et al. v. CHILDRESS, 183 F. 577

PER CURIAM. The second amended original petition, a trial amendment permitted by the court, although alleging for the first time that the contract of agency £o be procured by Childress, for Winters & Daniel was to be exclusive, was not a material departure from the cause of action as originally brought.

We gather from the evidence of William Plurt that he was aware of and favored the interest of Childress in the agency and commissions to he given to Winters & Daniel for the successful sale of the land in question, and therefore that Childress’ conduct in the premises was not open to the suspicions urged in the case.

From the evidence in the record it is reasonably clear that Winters & Daniel obtained the agency from Hurt through the efforts of Childress, and that if the latter had understood that to obtain a share of the commissions he would have to find an acceptable purchaser the services of Winters & Daniel would not have been required.

Some of the rulings of the trial judge may have tended to restrict the full development of defendant’s case, particularly the rejection of the letter of Daniel to William Plurt, the contents of which letter were somewhat brought out in cross-eiamination of defendant Daniel; but, after reading the letter in full, we are not prepared to say that the rejection thereof constituted reversible error, in materially prejudicing the defendants in the exclusion of evidence not otherwise in the case.

On the whole, the case seems to have been fairly ruled and submitted, and, notwithstanding the ingenious and forcible argument of counsel for the plaintiff in error, we conclude that the verdict and judgment of the Circuit Court should be affirmed. And it is so ordered.