164 Iowa 540 | Iowa | 1914
It appears that the defendant was the owner of certain property in the city of Oskaloosa; that the plaintiff was engaged in the real estate business; that some time during the month of May, 1912, the defendant listed his Oskaloosa property with the plaintiff, under an agreement between them that, if the plaintiff would procure some one who would purchase defendant’s property or would exchange other property for defendant’s property, on terms satisfactory to the defendant, the defendant would pay the plaintiff a commission therefor; that plaintiff found one Peppers, who owned a farm in Monroe county consisting of 210 acres; that the plaintiff took the defendant down to look at that farm; that the defendant did go down and look at the farm, in company with the plaintiff; that at the time the plaintiff told the defendant that there was a mineral right or coal lease on the land in Monroe county; that, after the defendant had looked the land over, he told the plaintiff that he wanted his wife to see it before anything was done; that the defendant looked the land over at that time, and expressed himself as satisfied with it, but returned to his home without making any contract with Peppers for the purchase of the land; that thereafter he was taken sick, and was sick for some time; that in the month of September following plaintiff again approached the defendant for the purpose of making a trade
On the trial plaintiff testified, substantially, as follows:
Defendant said to me: ‘If I sell, I would buy a farm; so I might as well trade for it. I have been' looking at different farms, but found nothing that suited me.’ I told him I thought I might get him a trade for the Peppers farm. I gave him a description of the place, told him I would see if Peppers would trade, and, if he would, I would let him know. So I called Peppers up over the phone, told what it was, where it was, and that he (Peppers) knew the place; and he said he would consider a trade. I told Fahrney that Peppers would trade. I also told him: ‘ There is a mineral right against that farm, but it has been sunk on and dug, and has been abandoned.’ I knew the place over in there for about thirteen years. I and hi2n went to Eddyville on the train, took a livery team, and drove out to Peppers’, looked the farm over, and I asked him what he thought of it. He says: ‘It is lots better than I expected, and better than you represented it.’ I showed him where the shafts was, and told him this mineral right was there. Mr. Peppers told him the mineral right was there, and showed him where it had been dug out, and where the shafts was situated on the place, the piles of slack, and where the tram road was. We talked trade. Mr. Fahrney wanted his wife to see the place, but she wasn’t able to go, and, as his wife wasn’t able to go, the matter kept hanging. And Peppers says: ‘I don’t believe there is any use to wait on that Fahrney deal; I will just call it all off.’ I told Mr. Fahrney that the deal ivas called off; this was the middle of May. Along in September I was down past Fahrney’s feed yard, and he says, ‘My wife is able to go and see the farm,’ and I said, ‘If you want to trade the way we talked .of when we was over there, the price, and Peppers will trade.’ I says, ‘I will let you know.’ So I . . .
Peppers, called as a witness for the plaintiff, testified substantially the same as the plaintiff, touching what was done and said regarding the trade, and further testified that all the terms of the exchange were agreed upon between him and the defendant, and that, when the defendant left after dinner, he said to Peppers, “You will be over tomorrow morning and draw up the contract as we have agreed upon for this farm,” and I says, “Yes.” I came over to draw the contract, and he said that he thought during the night that the mineral right might hinder him in disposing of the land. I was, at the time, ready, able, and willing to carry out my part of the contract.”
He further testified that the trade was made there on the farm; that the defendant did not ask for longer time to consider the matter; that all was agreed upon except reducing it to writing, and it was agreed that that should be done the next morning; that they were to furnish abstracts, but that the defendant was to take it subject to the coal lease; that he was to accept the land subject to the coal lease; he was to accept the land with the coal lease on it. ‘ ‘ The first time he came there I told him of the lease, and he saw a copy of it. While he was there on the farm, after he had inspected it, the defendant said he would take the place, and I said: ‘We will go to Albia and draw up the contract.’ I said: ‘We ought to draw the contract specifying what the trade amounted to.’ He said: ‘Come to Oskahjosa in the morning and we will draw up a contract. Everything is satisfactory that we have agreed upon. ’ ’ ’
I know Mr. Allgood who came to me about the middle of May, 1912. I was working in my barn putting in a screen door. He told me about a farm in Monroe county. We talked about exchange, and I told him I would go and see the farm. He- mentioned a coal or mineral lease of some kind, and I never lived in a mineral district, and I didn’t think much about it. I didn’t know anything about it, as I lived in Northern Iowa, and they didn’t have coal mines there. He explained to me that there was nothing that would hinder, as the coal was all mined out, and he took quite a little time explaining to me that it wouldn’t interfere with anything, the coal being all mined out, before we ever went to see the farm, and I asked the question whether that would hinder giving a clear title. We used the word ‘clear title’; didn’t use the word ‘merchantable title’; I was to furnish him a clear title to my property. A clear title we talked; didn’t use the word ‘merchantable title.’ We were to furnish clear titles to them. And he explained that to me at the time — very satisfactory at the time — that the coal lease was nothing that would interfere. So we went to see the farm. The farm is practically the same as stated by Mr. Allgood. I went and, looked the farm over, everything looked good. I asked Mr. Peppers, ‘How about this coal business ? ’ and he did explain it to me very satisfactory that it was nothing that should interfere in any way whatever, because it was all mined out; and I took their word for it that it was. Then nothing more was done until September, 1912, when Mr. Allgood came to my place. He had come several times, and he thought we might get the deal through for Pepper's’ farm, and he telephoned and said for my wife and I to come down; so my wife and I, with Allgood, went to the farm in an automobile. At this time absolutely nothing was mentioned about the coal lease, because I hadn’t thought anything about it from the time of the first deal until after I got home in the evening, when the thing came up to me about the title. That question came to my mind, and in the morning, when Peppers and Allgood came to go into the contract, I said, ‘Boys, now I got to studying about that this would be a clear title; whether there was a clear title to this.’ I argued that it would be a blemish to the
Then this question was asked him:
Q. Then, as I understand you, you wanted to tell the jury that you knew from the beginning that there was a coal lease on the land? They explained it to you; that you had a couple of months to study over it; and that about 11 o’clock, after the bargain had been made, you thought that the title might not be a clear one, and that that spoiled the trade, and that is the basis of your refusal to pay commission. Is that right? A. I never refused to trade, understand me. I didn’t refuse to complete the deal. I simply raised the question whether that was a clear title. They refused to go on with the deal, rather than furnish what I would consider a clear title. I was told the lease was on the land. I didn’t tell them that the deal was completed at the farm. I told them to come over to Oskaloosa the next morning; that there were things to be considered yet. I didn’t enter into any contract on the farm. I said to Mr. Peppers: ‘ This is quite a deal. We ought to consider it; think it over.’ I said there were lots of things to come up that we haven’t thought of. I told him to come to Oskaloosa in the morning, and he said he would. He came, and, of course, as I have stated, in the meantime this matter of a clear title came into my mind.
From the evidence submitted, the jury might well have found the following facts: That the defendant employed plaintiff to procure the exchange of property between him and Peppers; that plaintiff brought the defendant and Peppers together; that they entered into a contract satisfactory to both for the exchange, on defendant’s second visit to the farm; that nothing was said about the character of title to be delivered by either; that it was agreed that an abstract should be given by each, if requested; that no abstract was reqiiested; that Peppers appeared the next morning at Oskaloosa at the request of the defendant, and that he was then ready, able, and willing to perform all the conditions of his contract, and make the exchange agreed upon; that the defendant objected to carrying out the contract because of the lease, fearing that the lease might interfere with the resale of the property. The jury might well have found that the defendant was informed, before he made the contract, of all the conditions of the lease, and that he agreed to take it subject to the lease. Surely, then, the plaintiff had performed all that was required of him, or that he could perform in consummating the deal. It was then up to the defendant to perform; Peppers being ready, able, and willing to perform. His refusal to perform did not relieve him of his obligation to pay plaintiff’s commission. So much for the facts.
The first complaint made by the defendant is that the
As stated in Bird v. Phillips, 115 Iowa, 703: “Another objection in this connection is that plaintiff did not have a binding agreement with the would-be purchaser. A verbal agreement on the part of the buyer that he would effect the purchase is sufficient.” See, also, Ford v. Easley, 88 Iowa, 606.
In this last case it is said: Where an agent “is employed to sell property at a designated price, and on stated terms, he is entitled to his commission when he has found a customer who is able and willing ’to take the property at that price, and on those terms, whether a sale is consummated or not. ’ ’ And it is the holding of this case that, when an agent finds a person who agrees to take the property on the terms given, and is able, ready, and willing to carry out the agreement, he has done all he was authorized to do‘to effect a sale, and is entitled to his compensation for his services.
The rule generally is that, where an agent who is authorized to procure a purchaser for his principal’s land, or to make an exchange of land, on terms satisfactory to his principal, procures one who is ready, able, and willing to purchase, or make the exchange on terms satisfactory to the principal, and an oral contract is entered into between them as to the terms upon which the sale or exchange shall be made, and the sale or exchange is actually agreed upon, satisfactory to both parties, though not reduced to writing, and though not enforceable by either the buyer or the seller because of the statute of frauds, yet, if the purchaser procured is, at the time, ready, able and willing to perform all the conditions of the contract and enter into a written instrument binding both parties, and nothing remains to be done on the part of the agent’s principal except to make the writing which would bind it, and he refuses to do so, the agent is entitled to his commission, because he has done all that
Many other questions are raised and argued on this appeal which are in no way relevant to the issues joined, and no way determinative of any right involved in this suit, and we pass them by without comment. This is purely a fact case, with the evidence conflicting. The jury have decided the facts in favor of the plaintiff, and there is evidence to support their finding. In such cases we do not interfere.
Some question is raised as to the instructions. given by the court. We have examined these instructions with care, and find that they fully and fairly present all the issues and the law proper to be submitted to the jury in determining a ease of this character. The law governing the rights of the parties, under facts such as are disclosed here, has been so often discussed by this court, and so fully determined, that we do not feel called upon to reconsider these questions again.
Practically the only issue raised by defendant’s answer involved the truth of plaintiff’s contention, as set out in his petition. A general denial raised the only issue which could be properly submitted to the jury under this record, and it was so submitted by the court.
We have examined this record, and we find no reversible error, and the cause is therefore — Affirmed.