65 Minn. 150 | Minn. | 1896
Defendant was the owner of a quantity of standing pine timber in this state, which had been damaged by fire, and he was anxious to dispose of the same in time to have it cut the following winter, as it would become almost worthless if not cut. Under these circumstances he employed plaintiff, a broker doing busi
We are of the opinion that the verdict is not sustained by the evidence. It is admitted by plaintiff that he did not have the exclusive-right to find a purchaser, and that by his contract he was to have-no compensation unless he succeeded in finding a purchaser within the time limited. It is well settled that in such a case, and while the agent is engaged in trying to find a purchaser, the owner may sell the property if he can; and if he does so before the agent has found a purchaser he will not be liable to the agent for commissions, unless he has sold to a purchaser procured by the agent. Armstrong v. Wann, 29 Minn. 126, 12 N. W. 345; Putnam v. How, 39 Minn. 363, 40 N. W. 258; Dole v. Sherwood, 41 Minn. 535, 43 N. W. 569.
The next question is: When, under such a contract, has the agent earned his commissions by finding a purchaser? Is it when the agent himself has found the purchaser, or when the principal has found him through the agent? Is it sufficient that the agent has himself found a person ready and willing to buy, or must he produce that person to his principal? Must he bring the parties together, so that the principal has also found the purchaser? We are clearly of the opinion that he must. He must at least put the principal in communication with the proposed purcháser. The principal must have an opportunity to make a binding contract with the proposed purchaser before the agent has earned his commission.
Then, conceding that this plaintiff had all of November 16 in which to find a purchaser, and a reasonable time thereafter in which to give defendant notice thereof, still his right to compensation was subject to the contingency that defendant might himself sell to some other purchaser before he received such notice from plaintiff, and, if that contingency happened, plaintiff’s right to compensation was defeated. That contingency did happen, and we are therefore of the opinion that plaintiff cannot recover. It appears by the evidence that defendant could readily be found when wanted, and apparently acted in the best of faith with plaintiff. He had not suddenly gone away where he could not readily be found, and thereby delayed plaintiff in notifying him; and he did not find the other purchaser after the time when he wrould have been notified by plaintiff if the latter had not been so delayed. On the contrary, he was where plaintiff had expected to find him.
The order denying the motion of defendant for judgment in his iavor, made with the motion for a new trial, is reversed, and judgment in the court below is ordered for defendant.
At page 84.