125 Minn. 179 | Minn. | 1914
This action was brought to recover the sum of $7,705.60, alleged to be due from defendants as commissions for procuring a purchaser for certain Montana land. At the close of the evidence the trial court directed a verdict for defendants. This appeal is from an order denying a new trial.
The complaint alleged in substance that defendants, who were engag’ed in the land business at St. Paul, on September 3, 1912, employed plaintiffs to find and procure a purchaser for a certain 6,000 acre tract of land, commonly known as the “Frear Tract,” situate in Sweetgrass county, Montana, and agreed with plaintiffs that they should have as their commission all sums in excess of $10 per acre; that plaintiffs thereafter procured a purchaser for part of the land, and so notified defendants, who thereafter communicated with, and sold to such purchaser 2,568.18 acres of said land for $13 an acre. Judgment was demanded for the excess of $3 per acre, or $7,705.60. The defendants answered separately. The answer of defendant Felthous was a general denial with a specific denial of an allegation of the complaint that he and defendant Edwards were copartners. The answer of defendant Edwards, in addition to such denials, alleged that the contract of employment on which the complaint was based consisted of two letters written by defendant Edwards to plaintiff Cronan, and the latter’s assent thereto. These letters, which admittedly constituted the contract between the parties, were as follows:
“August 31st, 1912.
"Mr. William Cronan,
“Palace Building, Minneapolis, Minn.
“Dear Sir':
“We herewith hand you checkings and blue print showing one*181 tract of 6,000 acres and one tract of 9,515 acres of land in Sweet-grass county, Montana. If you have any clients looking for tracts of land of the size of these either one of them will surely suit them. Price of the two tracts together or either separately is $10.00 .per acre net to us. Whatever commission you desire to make will have to be added to this price. We can show the land at any time and will be pleased to give you full particulars.
“Yours truly,
“J. G. Edwards Land Co.,
“By J. G. Edwards.” “September 3rd, 1912.
“Mr. William Cronan,
“Minneapolis, Minn.
“Dear Sir:
“In putting .the 6,000 acre tract of land in Sweetgrass county, Montana, up at $10.00 per acre net to us, it is understood that there is fifty cents per acre to be divided equally between you and ourselves in case you sell at that price. On the 9,515 acres if you sell it at $10.00 net it is understood that there is $.40 per acre to be equally divided between us. In addition to this whatever you get above $10.00 per acre you are to retain.
“Yours very truly,
“J. G. Edwards Land Co., “By J. G. E.”
The reply admitted the writing and delivery of the two letters to plaintiff Cronan. The evidence showed that the letters and acceptance were intended to be the sole evidence of the contract of the parties, and that plaintiffs Bentley and Parsons were jointly interested in the venture with Cronan. Plaintiffs testified that, on the day the letters were delivered, they gave to defendant Edwards the names of certain Montana men who were in the market for a tract of land. The 6,000 acre tract was not owned by Edwards or Eelthous, but'they or one of them had the exclusive sale thereof under contract with the owner. Plaintiffs told Edwards that the Montana people had been dealing for a 9,000 acre tract for which they were to pay $60,000 as a down payment, .but that the deal had
Late in September, 1912, defendants Edwards and Eelthous went to Milbank, Montana. J. C. Eelthous & Co., a corporation, had purchased the 6,000 acre tract and Edwards was equally interested with Eelthous in the profits of the transaction. They had negotiations for the sale of the tract to Milbank Montana Land Co., a corporation'in which the men whom plaintiffs claimed to have mentioned to Edwards as possible purchasers, were interested. These negotiations culminated on October 24 in a sale by the Eelthous Co. to the Montana Co. of 2,568.18 acres of the 6,000 acre tract, at a price of $13 per acre. The rest of the tract was not sold, and still remains the property of the Eelthous Co. Defendants claimed on the trial that plaintiffs were in no way instrumental in procuring the purchaser or purchasers to whom this sale was made, but this question was on the evidence for the jury.
The verdict was directed on the ground that the contract upon which plaintiff seeks to recover was never performed; that is, that plaintiffs agreed to find a purchaser for the 6,000 acre tract as a whole, while- the purchaser procured by them was ready, able and willing to take but a fraction of the tract.
1. Plaintiff contends, in the first place, that the issue of entirety of contract was not raised in the answer of either defendant, and therefore that such a defense was waived. There is nothing in this point. Plaintiff sued on a contract, but did not set it out verbatim. The answer of defendant Edwards set out in full the writings constituting the contract sued on. Whether this contract was entire or severable appeared from the writings themselves, and it was neither necessary nor proper to plead the legal conclusion that defendant drew therefrom. There was nothing by way of new matter in the nature of confession and avoidance, nor was it claimed that the contract alleged in the complaint was invalid by reason of extrinsic facts, or that the services of plaintiffs were performed under any other contract.
2. Was the contract entire or severable? That is, were plaintiffs obliged, in order to perform their agreement, to find a purchaser
3. The contract being entire, can it be apportioned ? On principle •there is but one answer to this question. There can be no apportionment of an entire contract. As stated by Parsons, the question ■of apportionment always addresses itself to a contract which has .already been ascertained not to be single and entire. Such question
“Defendant owned a farm of two hundred acres, and agreed to pay Weber one hundred dollars if he would find a purchaser for it. Weber found a purchaser for one hundred and seventeen acres of the farm, who purchased that quantity from defendant. Weber sued for one hundred dollars.
“Clearly he was not entitled to recover anything. The contract was entire that Weber should find a purchaser for the whole farm, and that for doing so defendant should pay him one hundred dollars. Weber was not entitled to anything until he performed his part of the contract, and found a purchaser willing to buy the whole farm. This he did not do. Judgment affirmed.”
It is urged that Weber v. Clark was wrongly decided and should be overruled. We think the decision is sound and should be followed. The case has been cited with approval by text books and courts; 1 Notes on Minn. Deports, 1156. The principle involved is elementary. A broker is not entitled to compensation until he has performed the undertaking assumed by him. 19 Cyc. 240. The' undertaking assumed by plaintiffs was to procure a purchaser for the entire 6,000 acre tract. This they did not do. There was nothing in the contract that authorized a sale of a portion of the tract, nor was there any subsequent modification of the contract either in writing or by parol. The mere fact that defendants sold to the purchaser brought to them by plaintiffs a portion of the tract, does not, in the absence of a new contract, or conduct of the parties that
4. The contention of plaintiffs that has the most merit as far as natural justice is concerned, is that they should be paid the reasonable value of the services they performed, although they did not perform their contract. Of course the doctrine of substantial per
Our conclusion is that' the trial court was right in directing a verdict for the defendants.
Order affirmed.
