21 S.D. 619 | S.D. | 1908
This is an appeal by- the plaintiff from a judgment upon a directed verdict in favor of the defendant. The case was before us on a former appeal taken from a judgment in favor of the plaintiff, and is reported in 18 S. D. -558, 101 N. W. 719. The facts, are so fully set out in the opinion on- that appeal that a further statement of them does not seem to be necessary, except to say that after the remittitur was sent down to the circuit court the plaintiff on application was permitted to amend his complaint by making it an aotion for the value of his services instead of an action upon the special contract. At the close of the evidence the attorney for the defendant made the following motion: “We ask the court at this time to instruct the jury to return a verdict for the defendant upon the following grounds: First, that as the evidence now stands upon the undisputed testimony of the plaintiff and his witnesses the only agreement for the employment of the plaintiff for the sale of this land shows an express contract to sell these lands at $9 per acre in consideration of which Mr. Ball was to receive a commission of $1 per acre, and the undisputed evidence shows that Mr. Ball never produced a
It is contended by the appellant (1) that the plaintiff was defendant’s agent; (2) that the plaintiff found a purchaser for all the land; (3) that the plaintiff assisted in making the sale of the land which was made by the defendant to the purchaser; * * * (6) that the defendant took the matter of sale of the lands into his own hands, fixed the price per acre, añd sold the land at prices acceptable to him; (7) that the prices of the lands purchased and agreed to be purchased were fixed by the defendant exclusively; (8) that the prices were changed, and that the defendant failed to deed or transfer the 20 quarter sections to the purchaser whom the plaintiff procured; (9) that all of these dealings were had in the presence of said plaintiff, and that plaintiff assisted in making the said deals; that the said agency was at no time terminated, and that negotiations for the sale of the said lands were not carried on by the said defendant without the aid of said plaintiff; and the plaintiff therefore claims that, notwithstanding his failure to comply with the terms of the -written contract, he was entitled to recover in this action for the value of his services so rendered, and that such services were of the value of $1 per acre. Assumming for the purpose of this decision that the evidence sustained the foregoing contention of counsel for plaintiff, we are unable to discover any theory upon which the plaintiff would be entitled to a verdict in this action. While it may be conceded
In discussing this subject, Mr. Sutherland, in his work on Damages, says: “The requirement to ful-lfill the precedent condition to do the entire work for which an entire sum is promised to be paid results as a logical conclusion from such a contract. It is thus derived from the supposed intention of the parties because thev are held to mean what the contract, thus expounded, requires. What is done short of full performance being referable exclusively to the contract, there is no operative promise to pay for it. The express promise excluding any other, and not itself available until all the work is done. There -is no defect in the logic of this rule; and it may be said that, as it never applies except to carry out the intention of the parties, it is not to -the rigor of the law, but to the improvidence of the contract, that any hardship of individual cases must be ascribed. * * * Formerly this logic was law, invariably enforced. The intention of the parties, deduced from a construction of their contract, was the iron rule and law of the contract, not dispensable, or subject to any legal evasion or mitigation. 2 Sutherland on Damages, p. 456. But that learned author on page 466 says: “Where a party fails to comply substantially with an agreement, unless it is apportionable, the rule is well settled that he cannot sue upon the agreement or recover upon it at all, and under the strict common law he was remediless. But
In the late case of Ames v. Ramont, 107 Wis. 531, 83 N. W. 780, the Supreme Court of Wisconsin, in discussing an analogous question to the one at bar says: “Appellants, however, seek to avoid the .rule of McArthur v. Slauson, 53 Wis, 41, 9 N. W. 784, by abandoning the express contract and suing upon an implied contract to pay the reasonable value of their services in finding a purchaser. They invoke the elementary rule that he who knowingly avails himself of the benefits of another’s services is presumed by law to have intended to pay for them their reasonable value, and a promise to do so is implied. The rule is,, however, restricted bV limitations as elementary as itself, such as that the services must have been rendered and received under circumstances to warrant the inference and expectation of payment. If there is an express agreement to which such services may be ascribed, the expectation is presumptively according to the terms expressed. Tn the case before us the plaintiff’s services were obviously rendered on the faith of the express promise to< pay therefor only the excess obtained over $10,000. This fact wholly excludes any inference or implication of a different understanding by them or promise by the defendant. In the presence of .the express, there is no room
It was claimed by the plaintiff, and in our former decision we assumed for the purpose of that decision, that an additional verbal contract was made between the plaintiff and .the defendant by which the defendant agreed to pay the plaintiff $1 per acre in case the sale was made, and for the purpose of the decision in this case we may make the same assumption; but that additional verbal contract did not vary or change the terms of the original contract except as to the commission, and therefore, to entitle the plaintiff to recover under that contract, it was necessary for him to show that he had found a purchaser ready, able, and willing to take the land at a price in excess of $8 per acre.
It is further contended by the respondent that by a fair construction of the contract entered into between the plaintiff and the defendant it constituted an option contract under.. which the plaintiff was entitled to an excess of $8 per acre that he might obtain for the land, and had he desired to do so he could have taken the property himself at $8 per acre. There is much merit in this contention.. The contract between the parties reads as follows: “Verdón, S. D., Aug. 1st, 1901. Frank C. Bali: I have the following lands for sale, namely, 11 quarters in Brown county, S. D., 7 quarters m Spink county, S. D. 2 quarters in Clark county, South Dakota, which I will sell at $9.00 per acre, provided all are purchased at one time. I will protect you on any purchase you may send me within 30 days from date. C. R. Dolan.” In contracts of this character the rule seems to be quite well settled that, unless the broker secures a purchaser ready, able, and willing to purchase the property at a price in excess of the amount specified in the contract, he is not entitled for any commission for his services either under the contract or in an action on quantum meruit. McArthur v. Slauson, 53 Wis. 41, 9 N. W. 784; Beatty v. Russell, 41 Neb. 321, 59 N. W. 919; Hurd v. Nelson, 100 Iowa, 555, 69 N. W. 867; Antisdel v. Canfield, 119 Mich. 229, 77 N. W. 944. In Beatty v. Russell, supra, the owner placed his land with brokers for sale, stating that
The contention of the plaintiff that there was a waiver on the part of the defendant is untenable. This claim is based upon the theory that, although the purchaser could not be induced to pay more than $8 per acre, the fact that the defendant openly, with the knowledge of the plaintiff and without objection by him, made the sale at the highest price obtainable, did not constitute a waiver, as it is not claimed that the purchaser would have paid more than $8 per acre, and there was therefore nothing to waive. In the case of McArthur v. Slauson, 53 Wis. 41, 9 N. W. 784, the Supreme Court of Wisconsin in speaking of waiver uses the following language: “But he're the defendant claims that there was a special
contract by which the plaintiff undertook to furnish him a purchaser who would be willing to pay the full amount due on his securities, for which service he was to receive $500. • If this was the contract, it was incumbent upon the plaintiff to produce such a purchaser, or he was not entitled to recover the stipulated compensation. If the plaintiff produced such a purchaser, and the defendant, knowing that fact went and made a sale at a less price, this, doubtless, would amount to a waiver.”
It is not claimed by the plaintiff that in the case at bar there were any secret dealings between the defendant and the purchaser in order to avoid paying him his compensation, and there was nothing upon which to claim any fraudulent conduct as against him.
Under no view of the case, therefore, was the plaintiff entitled to recover in this action, and the judgment of the court and order denying a new trial are affirmed.