Mr. Justice Harlan,
after stating the case, delivered the opinion of the court.
1. We perceive no error in the court's charge to the jury upon the cause of action set out in the first count' of the complaint, namely, as to whether any such agreement as that alleged was ever made between the plaintiff and the defendant.
The court properly said:
" On the cause of action as stated here, in order to show any right upon the part of the plaintiff to the commission for which he sues, in making the sale, the proof must be of a sale made to the defendant, or an agreement for a sale to be made to the defendant, not a sale to Judkins and Devereux, not a sale to Judkins and the defendant, because that is a very different matter from a sale to the defendant alone. If Judkins was to be interested in the purchase he would also join in the payment of the commission — that is to'say, Judkins and Devereux, if they purchase, Devereux acting on his own behalf, Judkins and the defendant, if they purchase jointly, .would pay it. If some other man was brought into the purchase— some one not named at that time or referred to in any way — then it would be that other man and Judkins who would pay the plaintiff the commission; furthermore, it does uot appear — in fact the evidence tends to prove that Devereux had no authority from Wheeler at that time to make any purchase of this property or any other, and, of course, an agreement by Devereux on behalf of the defendant to purchase this property would not be binding on the defendant unless. afterwards with full knowledge of the situation and circumstances, and of what had been done by Devereux in his behalf, he should ratify and confirm what had been done by Devereux. I do not see that this evidence proves, taking all that is said about it by these witnesses, a contract on behalf of the defendant to purchase this property through the plaintiff. I say now generally upon this branch of the case that it must appear to you from the evidence, that there is an agreement between the plaintiff and defendant — Mr. Rucker and Mr. Wheeler — to the effect that Mr. Rucker was to secure the property for him and that he was to pay him for that service. The agreement, which appears to be stated by Judkins and by Devereux, is not of this character — that is, that was an agreement that Judkins would purchase with somebody else, and of course Judkins would be chargeable with the commission if it was carried out."
It.is insisted by the plaintiff that the court went too far in its expressions of opinion upon the evidence bearing upon this issue, and that what was said had practically the effect of taking the case from the jury. It is no longer an open question that a judge óf a court of the United States, in submitting a case to the jury, may, in his discretion, express his opinion upon the facts; and that " when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury," such expressions of opinion are not reviewable on writ of error. Vicksburg &c. Railroad v. Putnam, 118 U. S. 545, 553; St. Louis &c. Railway v. Vickers, 122 U. S. 360; U. S. v. Reading Railroad, 123 U. S. 113, 114. Whether the parties made such an agreement for compensation to.the plaintiff as that alleged was the only issue made by the first count of the complaint; and that was a question of fact to be- determined by the jury. Their right to determine it was distinctly recognized in that part of the charge Which immediately followed the court's expression of opinion as to certain portions of the evidence, namely..: " If you can find anything in the evidence to support the conclusion that the defendant made an agreement with plaintiff to pay ibis commission, and that the.property was afterwards purchased by-him in pursuance of that agreement, then the plaintiff-is entitled to recover; otherwise he is not entitled to -recover." Indeed, we are not sure but that the court might properly have given a peremptory instruction in favor of the defendant upon this branch of the case.
2. In reference to the cause of action set out in the second count of the complaint, it is manifest that the plaintiff bases his right to recover upon the agreement alleged to have been made between him and Henry Webber, at the time the latter executed the quit-claim deed of April 28, 1884, to the effect that plaintiff's interest would not be subject to the burden of the lease made by Abbey to Nevitt; of which agreement, it is further alleged, Julia Webber had knowledge when she purchased from her husband, and defendant had knowledge at the time he purchased from her.
Upon this part of the case the court said to the jury:
"Now, the position of the plaintiff is that he comes in under the designation of a grantee or assignee of Webber for one-half of the amount reserved to Webber by this agreement — that is -girths; this agreement reserves to Webber ¿#ths; and the position of the plaintiff is that he must be regarded as an assignee and grantee of Webber in virtue of his deed of the preceding April for half of that amount which was reserved to Webber. He has brought this suit to recover that. Now, as I said before, in the deed there is nothing about that, and the question is, what was the intention of the parties at the time this deed was made ? The plaintiff testifies that it was his intention that he should have the interest accruing under this lease as it went along, and was not to be postponed to the lease. I understand Mr. Webber to deny that proposition. Some comments have occurred between counsel as to the meaning of Mr. Webber's testimony, whether he has denied it or not. Mr. Webber could, if he-chose to, by the terms of the agreement, reserve this entire interest to himself — that is, all that was accruing under the lease; if it was his intention to keep it to himself, and there was no agreement of the parties in respect to it, the deed constitutes no agreement. He could reserve it to himself, and if he did reserve it to himself, if nothing was said about it at that time, in the absence of any agreement between them that it should go to the plaintiff, then it would go to Webber; and under these circumstances it remained in him up to the time that he made the sale to the defendant in this case. After the agreement of September 26th, and some time in October, Nevitt sold, as you remember,, through the negotiations of Mr. Judkins, to Mr. Devereux or to the defendant directly — I don't remember much about that transaction — and subsequently Mrs. Webber, in a conveyance which she made to the defendant, assumed to convey all right and interest accruing to her under the lease. Upon that point the question is whether there was any agreement between the parties that the plaintiff's right and interest under this deed should become effectual at once upon the execution of the deed, and that he should be entitled to whatever should come under the lease to Webber — that is, to his part of it, -j^th, ^ths, of the whole amount — and if Nevitt was taking the whole preceeds of the mine, and I believe he was — at least it seems that he did so or assumed the right to do so after the mine became frbitful, and that was only in August, I think, of the same year — theré" were no proceeds of the mine, nothing that could be divided amongst them — among the several parties — until that time, and nothing was in fact divided until aftei this agreement of the 26th of September was made. So that the question must be whether there was an agreement between the plaintiff and defendant, or between the plaintiff and Webber, that he should be entitled to these proceeds from the time of the conveyance to him; that is a question of fact for your consideration. If you find that there was such an agreement; that the parties understood and intended that Mr. Bucker should be entitled to whatever should arise under the lease according to the proportion and interest conveyed to him by this deed from and after the time of the deed until the end of the lease, then my understanding is that he is entitled to' recover the sum specified in this stipulation between the parties. They have agreed upon the amount. In the absence mf such an- agreement, then, he is not entitled to recover."
- There was no error in this charge. It contained all' that, need have been said. It fairly submitted to the jury the question as to the existence or non-existence of the agreement upon which the plaintiff relied. That the plaintiff did rely upon that agreement is perfectly clear, not only from the complaint, but from his' second request for instructions, as follows:
"2. The court is asked to instruct the jury that if they believe from the evidence that the lease of a portion of the lode, though made nominally to Nevittj was in fact owned by Mr..Henry Webber, and that the same Webber sold and conveyed a one-twelfth interest to the plaintiff after the making and delivery of the lease, and if they also believe from the evidence that at the time of the execution of the deed from Webber to plaintiff it was mutually agreed between Webber and plaintiff that this one-twelfth should be exempt from the operation of said lease, then plaintiff is entitled to the proceeds of the one-twelfth, and upon' these facts they should find for the plaintiff to the amount fixed by the stipulation of the parties read, to the jury, and interest at the rate of ten per cent per year from August 24th, 1885, the date the suit was' brought."
' The jury having found, under appropriate instructions as to the legal rights of the parties, that there was no such agreement, and the parties having stipulated that nothing was due to the plaintiff if the interest he acquired from Henry Webber Avas subject to the burden of the Nevitt lease, the judgment is
Affirmed.