Appeal—Law of Case—Question of Fact—Question not Decided.—A decision upon a former appeal as to a question of fact does not become the law of the case upon a second appeal, and a point presented upon a second appeal which is not the same as that decided upon a former appeal cannot be concluded by the former decision; nor will the application of the doctrine of the law of the case be extended beyond the cases in which it has hitherto been held to apply.

Broker’s Commissions—Procuring or Purchaser.—Under a contract authorizing a broker to negotiate a sale of mining stocks for three hundred thousand dollars, and to receive as his commission all that he could obtain for the stock above that price, in order to entitle the broker to recover commissions where no sale was actually consummated, it is incumbent on him to prove that he found a purchaser ready, willing, and able to buy the property on the terms fixed, and either that he procured from that person a valid contract binding him to purchase the property on those terms, or that he brought the vendor and the proposed purchaser together, so that the vendor might have secured such contract if he desired.

Id.—Statute of Fraud.—A contract for the sale of mining stocks for a sum not less than three hundred thousand dollars is within the statute of frauds, and must be in writing, if the purchaser has not received any part of the stock, or paid any part of the price.

Id.—Verbal Offer to Purchase—Insufficient Evidence.—Evidence showing that plaintiff, within the time limited by the contract, found a person in London who offered verbally to purchase the stock for four hundred and twenty-five thousand dollars, and communicated that fact to the owner of the stock without naming or pointing out the purchaser, whereupon the owner refused to make the sale, and no contract was obtained from the supposed purchaser binding him in any way, is not sufficient to justify a verdict for the recovery of commissions by the broker.

Id.—Effect of Refusal by Owner—Prevention of Performance.— The refusal of the owner to perform the contract entered into by the broker with a proposed purchaser does not amount to a prevention of performance, so as to entitle the broker to commissions without procuring a purchaser, who has made an offer to the vendor, and not merely to the broker to enter into the contract of purchase bargained for.

Id.—Evidence—Pecuniary Ability of Purchaser.—Evidence that the proposed purchaser, who did not claim that he himself had any property or means adequate for the purchase, had made the purchase on behalf of a syndicate, and expected to obtain necessary funds from that syndicate, amounts to nothing more than a statement of his belief that persons not hound to do so would have advanced the money necessary to complete the purchase, and is not sufficient to justify a finding that he had the ability to pay the purchase money.

Id.—Oral Admissions of Plaintiff—Instructions.—In an action by a broker against the administrator of the estate of the deceased vendor of the stock, where testimony introduced by the defendant tends to prove oral admissions by plaintiff that he had never found a purchaser for the stock, it is not a proper occasion for an instruction to the jury, at the request of the plaintiff, that evidence of the oral admissions of a party ought to he received with caution by the jury.

Id.—Admissions of Deceased Person—Weak Testimony. —No weaker kind of testimony can be produced than the unsupported testimony of a single person, as to a conversation between himself and a deceased person.

Id.—Rebuttal of—Repudiation of Contract.—Where the plaintiff claims that the decedent repudiated his contract for the sale of the stock, evidence for defendant is admissible to show that the stock was kept in the hands of a third person for delivery to any purchaser whom plaintiff might procure under the contract.

Id.—Declarations of Deceased Person—Res Gestae.—Although the administrator of a deceased person cannot be permitted to prove the mere declarations of the decedent, he is entitled to prove his acts under the contract sued upon and any declarations made at the time, and characterizing those acts as a part of the res gestee.

Id.—Appeal from Judgment—Dismissal.—An appeal from a judgment, taken more than one year after the entry of the judgment, will be dismissed.