135 Iowa 1 | Iowa | 1907
The following memorandum of agreement was made and entered into between defendant and Bobert H, Purvis on or about the day it bears date:
It is claimed that this was entered into after negotiations for the trade had been entered upon, and that the note and mortgage of $3,950 was to be executed to - defendant’s father and brother, and by him assigned to Purvis, and that Miller represented that he would not complete the trade unless he could make a loan of $15,000 upon the Clay Works, and that Purvis was not to receive his commission, which was represented by the $3,950 note and mortgage unless said loan was made. That the exchange was in fact consummated, and that defendant, instead of procuring a loan of $15,000 upon the Clay Works, accepted one for the sum of $5,000 is conceded. It is now asserted that the proposition requiring the procurement of the'$15,000 loan was demanded and inserted in the contract through fraud, and
Pie avers that he has made demand upon defendant for the $3,950 note and mortgage which was refused, and he further alleges that defendant waived his right to insist upon the $15,000 loan and is estopped from denying his liability to plaintiff. Defendant, in answer, denied plaintiff’s claims, except that he admitted the employment of Purvis to negotiate a trade. He averred that without his knowledge Purvis was acting as agent for both parties to the exchange; that he had received the sum of $1,000 for his services from parties who are interested in the Olay Works. He, also, averred that Purvis was to procure the $15,000 loan upon the Olay Works, and was not to be entitled to any commission unless he secured it, and that he utterly neglected to make or secure the loan, of all of which plaintiff had notice, and that, as Purvis failed and neglected to comply with his part of the contract, neither he nor plaintiff is entitled to any commission, or to the note and mortgage for $3,950. Defendant, also, pleaded conspiracy and fraud upon the part of plaintiff
The statements already made present all issues tendered by defendant’s answer, save that it is alleged that plaintiff knew that Purvis was acting as agent for both parties at the time he obtained the assignment of the commission contract. Plaintiff denied generally the allegations of the answer, and pleaded that upon the day the exchange of properties was made defendant secured a loan of $5,000 upon the Clay Works, thus waiving his right to insist upon a $15,000 loan and putting it out of his power to make a $15,000 loan, and that he thus waived the provision as to the $15,000 loan, and he further pleaded that defendant has had ample opportunity to secure a $15,000 loan, and that he has failed and neglected to do so, and is thus estopped from relying upon his failure to procure such a loan. The verdict upon these issues, as has been stated, was for defendant. Plaintiff’s principal reliance for a reversal is upon errors in the instructions, although some complaints are made of rulings on evidence.
If you find from the evidence that Blake told Miller that- Purvis said that he (Purvis) was not to obtain the $15,000 loan, and that he (Blake) was about to make a settlement with Purvis, and inquired of Miller whether he
If Blake told Miller that Purvis said that he (Purvis) was not to make the loan, and Miller refused to say whether Purvis was or was not to make the loan, but merely referred Blake to the contract, then Blake had the right to assume that it was Miller, and not Purvis, who was to make the loan, then you are instructed that, in such case, Miller would only be allowed a reasonable time in which to make the loan; and you are further instructed that, if Miller failed to make such loan within a reasonable time, and suit was not commenced until after the expiration of such reasonable time, then, in such case, the fact that no such loan has been in fact made is no defense in this case.
In the absence of an oral agreement that Purvis should procure a loan of $15,000, you are instructed that the written contract means that the loan was to be made by the owner of the property; that is, by Miller himself, and not by Purvis.
The court, upon its own motion, gave the following, in addition to those above quoted:
In reference to the claim of plaintiff, you are instructed that he had a perfect right under the law to purchase of said Purvis all or any interest that said Purvis had in the commission contract with the defendant, Miller, and take, an
And if you do not find for the defendant on one or more of his defenses to this action, then the plaintiff is entitled to recover, and it would be your duty to return a verdict for the plaintiff for the amount you find under the evidence that the defendant, Miller, agreed to pay the said Purvis for his commission, as provided in the contract between the two.
You are instructed that, in this suit of the plaintiff against the defendant on said commission contract, assigned to the plaintiff, the defendant has the right to make the same defense that he could have made if the suit had been brought by the said Purvis himself.
If you find from the evidence that the said Purvis and the defendant, in addition to the contract in writing between them, made an oral contract, by which the said Purvis was to procure for the defendant a loan of $15,000 upon the Ft. Dodge property, and the procurement of said loan was not afterward waived by the defendant, then, the loan not having been procured, the plaintiff is not entitled to recover in this case, and your verdict should be for the defendant.
If you find from the evidence that the defendant after making said written commission contract with said Purvis and the additional oral contract in relation thereto as above mentioned, if he did, made the written contract for the exchange of Minnesota land for the Ft. Dodge property, by which said defendant was only furnished a loan of .$5,000, secured by a mortgage on the Ft. Dodge property, and thereby abandoned the plan of procuring a $15,000 mortgage, but completed said arrangements for the exchange of said properties by obtaining a mortgage for $5,000 only, then the defendant would have waived any right to after-wards insist that said Purvis furnish him a loan of $15,000 on said property, and would have no right now to complain that such loan was not furnished, and would not be released from his liability to the plaintiff for said commission on the ground that Purvis had not furnished said loan of $15,000.
But if you find from the evidence that said loan of
If you find from the evidence in this case that the said Purvis represented to the defendant that, in case he (the defendant) exchanged his Minnesota land for the Pt. Dodge Clay Works, he (Purvis) could and would procure for said defendant a loan or mortgage on said Pt. Dodge property, in the sum of $15,000, and that the defendant, relying on said representations, made said exchange, and in making said exchange and receiving the loan of $5,000 he 'did not abandon his intention of obtaining a loan for $15,000, and did not thereby waive that promise made him of the larger loan, then the plaintiff would not be entitled to recover, and your verdict should be for the defendant.
If you find from the evidence in this case'that the said Purvis received from the owner or owners of the Pt. Dodge Clay Works the sum of $1,000 for his (Purvis’) services in obtaining the exchange of. their property' for the Minnesota land of the defendant, and such payment was made with the knowledge and consent of the plaintiff, then the plaintiff cannot recover the commission he is now suing the defendant for.
If, however, you find from the evidence that the $1,000 was paid Purvis by the owner or owners of the Pt. Dodge Clay Works on the order of the plaintiff, and that said order was given said Purvis by the plaintiff in payment, or part payment, for the assignment of the written commission contract from Purvis, and not for any services performed by said Purvis for the Ft. Dodge Clay Works in aiding them in procuring an exchange of their property, then the receipt of the $1,000 by Purvis would not of itself defeat the right of the plaintiff to recover in this case.
A cursory reading of these instructions shows that they are in conflict and inconsistent, and if there be evidence to support plaintiff’s claim of estoppel by reason of the defendant’s conduct and declarations, which the trial court
Second, it is insisted that there is not sufficient testimony as to an estoppel to take the case to a jury. Even if
All this, according to some of the testimony, was coupled
Upon the whole case, there was not such a showing as would have justified a directed verdict for defendant, and, as the instructions are inharmonious, so much so as to mislead and misdirect a jury, the case must be reversed on account thereof. The instructions disclose the only issues submitted, and these we need not further elaborate.
Por the errors pointed out, the judgment must be, and it is, reversed.