112 N.W. 139 | N.D. | 1907
This litigation arose in justice’s court and was appealed to the district court, where it was tried anew and judgment render
The cause of action upon which plaintiffs rely for a recovery is stated in their complaint, in substance, as follows: . That at all the times hereinafter mentioned plaintiffs were real estate brokers, doing business at Milnor, N. D., under the firm name of Anderson & Jorgenson; that on or about May 1, 1902, the defendant agreed with plaintiffs that in the event plaintiffs were able to procure the sale of certain real property (describing it) to defendant on terms acceptable to him, and offering his price at $2,300, plaintiff’s commission should be $100, to be paid to plaintiffs by defendant at such time as plaintiffs procured a seller able and willing to sell on such terms; that plaintiffs did procure the owner of said land, one Christ Staiger, who was willing, ready, and able to sell, and who, in fact, did sell the same to defendant on terms acceptable to him on or about May 10, 1902, and that thereby defendant became indebted to them in the said sum of $100, no part of which has been paid. The answer consists of a general denial. Under the issues thus framed it was incumbent on plaintiffs to show that they produced the owner of the property, and that he was willing, ready and able to sell and transfer to defendant a merchantable title thereto upon the terms stated, to wit, $2,300. Did plaintiff show this? The undisputed evidence is to the contrary. While plaintiffs were permitted to prove statements made by Staiger to them as to his willingness to sell the property for $2,300, which testimony was clearly incompetent as being merely hearsay, the undisputed evidence is that Staiger subsequently refused to sell for that sum, and that defendant finally entered into a contract with Staiger to buy and Staiger agreed to sell the property at the price, $2,325. Not only did plaintiffs fail to prove their cause of action in this respect, but they offered no testimony whatever to show that this man Staiger whom they produced was able to furnish title to the property, and, furthermore, the testimony offered -by defendant for the purpose of proving the contrary was, on plaintiff’s motion, excluded by the trial court.
It seems to have been the theory of plaintiff’s counsel, and also of the trial judge, that all it was necessary for them to prove, in order to recover, was the existence of the contract as pleaded, and that they produced the person claiming to own the property and who,
Counsel for respondents, as well as the trial court, also seem to> have labored under the false impression that the commission was earned when plaintiffs produced the owner who was willing, although unable, to sell to defendant. We think it was clearly erroneous to reject defendant’s offered proof tending to show Staiger’s inability to transfer title to defendant, as, under the allegations of the-complaint, such commission was to be paid only upon condition that plaintiffs produced a person who was willing, ready, and able to-furnish to defendant a title to the property upon the terms mentioned. Surely it cannot be successfully contended that, under a -contract such as the one stated in the -complaint, the commission would be earned by bringing to the defendant a person claiming to be the owner, but who, in fact, had no title, and who nevertheless is willing-to enter into a contract agreeing to sell and transfer title. This is to our minds too plain for discussion.
What we have above stated is upon the theory that there was, in fact, a contract between the parties for the payment of a commission as alleged in the complaint. But we are convinced that -under-defendant’s showing it was at least a question for the jury to say whether or not such a contract was -ever made. As we construe-defendant’s testimony, he flatly denied the same. According to his-
Appellant asks for judgment notwithstanding the verdict or for a new trial. We are agreed that the latter portion of his motion should have been granted, and for the error in denying it the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant.