11 S.D. 233 | S.D. | 1898
Plaintiff’s were co-partners engaged in business as real estate brokers at Pierre. Defendant resided and owned an interest in certain realty in the same place. Brown, acting for plaintiffs, called upon defendant, ascertained his price and terms of sale, and informed him that he knew of a purchaser. Thereupon they proceeded to the office of P. F. McClure, where it was agreed that McClure would purchase defendants interest in the property for $11,000,- — $5,500 cash upon delivery of deed, and balance in one year, with interest at 8 per cent., secured by mortgage on the premises. Such understanding having been reached, Brown, claiming to have
This is not a case wherein a broker was employed as such and entitled to his commission by having procured a party, ready, able, and willing to purchase upon the owner’s terms, as in Scott v. Clark, 3 S. D., 486, 54 N. W. 538, and other cases' heretofore decided by this court. It is immaterial what relation existed between defendant and Brown prior to the meeting at McClure’s office. Both Brown and defendant testify to the making of an express contract, which triust, when its terms are ascertained, determine the rights of the parties. Under the evidence, there were only two questions to be determined. If defendant’s promise was unconditional, plaintiffs should have recovered; if it was conditioned upon the consummation of the sale as agreed to by defendant and McClure, plaintiffs should not have recovered unless the sale was so consummated.