129 Iowa 41 | Iowa | 1905
The petition is in two counts. In the first plaintiff alleges that in September, 1902, the defendant, a resident of Minneapolis, Minn., and one C. A. Diehl, a resi-' dent of Des Moines employed J. E. Alpaugh and W. H. Dinnell, real estate agents residing in Adel, Iowa, to act as their agents to find purchasers for tracts of Canada land of' which they were owners; tliat the compensation agreed upon'
In the main, the facts are not involved in any serious controversy. It was made to appear on the trial that Dr. C. E. Diehl, Clarence A. Diehl, the defendant Porter, and some ten other persons were the beneficial owners of extensive tracts of land in the Northwest Territory, Canada, the title to all which was in Dr. Diehl as trustee. The extent of the interest held by any one of the persons does not appear. One of such tracts consisted of about 15,000 acres, and is spoken of in the record as the “ hill lands ”; a further tract some distance removed from the hill lands, is spoken of as the “ bottom lands.” Late in August, 1902, J. E. Alpaugh happened in Des Moines, and upon meeting Clarence Diehl, the latter proposed that he (Alpaugh) undertake to find a purchaser for the tract of hill land. The land was described to him generally, and a price was fixed at $4.50 per acre, with a commission fixed at thirty-five cents per acre. The bottom lands were spoken of, but no price was fixed. Alpaugh demurred on the ground that he had no funds to defray expenses, whereupon Diehl agreed to furnish funds and gave Alpaugh $25, and, as the latter puts it: “I went to work.”
About this time, Porter, who was then a real estate broker residing in Minneapolis, Minn., came upon the ground and interested himself with Alpaugh and the others in getting tip a party of prospective purchasers to go to Canada and look at the land. Two men only, Gudgel and Hoy, each of whom was introduced by Alpaugh, were induced to go, and they were accompanied by Alpaugh, Dinnell, and Porter. Alpaugh testifies that before the start was made, at a meeting of the parties interested, Hoy remarked that they might not want to take the entire tract on the hill, in response to which Porter said that, if they did not take but 5,000 of the 15,000
In his testimony, Porter denies the statement so attributed to him, and declares that before the trip he knew nothing of the terms on which Alpaugh and his associates, were working. Before going, the talk with Gudgel and Hoy was principally about the hill tract of land, and it does not appear that either Alpaugh or his associates made particular presentation of the subject of the bottom lands, and certainly no prices-on such lands were quoted. After inspection of the lands, Gudgel and Hoy each proposed to buy portions of the hill tract and o,f the bottom lands, but upon condition that the price should be uniform at $4.50 per acre. Porter declined to contract on such basis without direct authority from Dr. Diehl, and wired him for advice.
It is conceded that, while waiting for a reply, Porter told Alpaugh that, if a contract was made on the basis proposed by Gudgel and Hoy, he (Alpaugh) would have to submit to a cut on his commissions, and that the cut would be to about $1,000. Porter testifies that Alpaugh consented to this and suggested that he (Porter) go ahead and close the deal. Alpaugh, in his testimony, insists that he refused to submit to any cut. Hpon advice from Dr. Diehl, Porter did contract to sell to Gudgel and Hoy .the number of acres as in the petition stated, being in part hill lands and part bottom lands, at ■ the flat price of $4.50 per acre. After his return, Alpaugh. talked with Clarence Diehl about the commissions, and Diehl testifies that what the latter complained of was that Porter had sent him a statement of the commission account in which the sum total was stated as $8 3 8.42,,and not $1,000 as Porter had promised; also that Porter had charged up too much for expenses. Diehl says that he answered Alpaugh that he would go over the matter with Porter and bring up the amount to as near $1,000 as possible.
To constitute an accord and satisfaction, where there is a bona fide dispute, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to the condition that, if the money is accepted, it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions. A party to whom an offer is thus made has no alternative but to refuse it or to accept it upon such conditions,' and if he takes it his claim is canceled.
This was followed by an independent paragraph of the same instruction in which the court attempted a change to the ’concrete and proceeded to tell the jury that:
If you find that there was a genuine dispute between the plaintiff and his assignors and the said defendant as to the amount of commissions due said agents for the sale of said lands to Gudgel and Hoy, and you further find that C. A. Diehl, acting for the defendant, sent to the said Alpaugh a check for $335.42, and that such check was offered to said Alpaugh in satisfaction of the claim for commissions and on condition that it should be accepted in payment of the amount due, and you find that the said Alpaugh knew, or under the circumstances should have known, that it was offered only on such condition, and you find that said Beaver, Dinnell, and Alpaugh were partners, or that Beaver and Dinnell looked to said Alpaugh for their share of said commissions, and you find that said Alpaugh received, indorsed, and transferred said check, then by so indorsing the same he accepted it and agreed to the compromise which it was tendered to effect. If you so find, your verdict should be for the defendant.
And in a further instruction the jury was told in substance that if they found that plaintiff, Alpaugh, and Dinnell were not partners in the deal, but were interested as individ
If you find from the evidence that there was a dispute, in good faith, between Porter and Alpaugh as to the amount of commissions dne said agent or agents for the sale of said real estate to Gudgel and Hoy, such dispute might be legally the matter of compromise and settlement between said parties, and the payment of a smaller sum than the sum actually due might operate as a satisfaction of the amount due, if such compromise and settlement was agreed upon and the sum paid was tendered on the condition that it should be received, if accepted, in full settlement, and the same was so received. And in this case, if you find that prior to December 4, 1902, there was a disagreement in good faith between .the said agents and the said Porter, or said Diehl, as to the amount due as commissions, and that thereupon said parties agreed to pay a certain sum which the said agents agreed to accept, and that in pursuance of such agreement said Diehl did, on December 4, 1902, send a check to said Alpaugh for the amount then due under the agreement of settlement, and that said Alpaugh indorsed and transferred said check to another by whom it was collected, and you further find that said check was tendered and received with the intention on the part of said Diehl and the said agents that it should operate as a full settlement and satisfaction of said claim, then there was a full accord and satisfaction thereof, and plaintiff cannot recover.
There was then no partnership question to submit to the jury respecting the relations between such parties. Moreover, plaintiff does not claim to have been employed in any way by or on behalf of plaintiff; he sues as the assignee of Alpaugh and Dinnell, and, in any event, he was bound by what was done by Alpaugh before the latter executed and delivered the assignment upon which plaintiff bases his right to sue. The instruction last above quoted ignores the relations between plaintiff, Alpaugh, and Dinnell as having any controlling effect upon the situation, and, conversely stated, makes an effective settlement depend wholly upon whether a previous agreement in terms was reached, pursuant to which, and in strict fulfillment, the check.was sent, received, and accepted.
The conclusion is irresistible that the instructions must be condemned, because conflicting, because they were calculated to carry confusion into the jury box, and because they presented matters for the determination of the- jury which had no place in the record. All the books agree that under such circumstances there must be a new trial. Other errors argued need not be discussed, as they are not likely to again arise. A new trial is ordered, and the case is remanded for that purpose. — ■ Reversed.