178 P. 589 | Utah | 1919
The complaint, in substance, alleges: That in September, 1909, defendant employed the plaintiff to procure for it a loan of $90,000 on defendant’s note secured by a mortgage on certain real estate situate in Salt Lake City, for which services plaintiff was to be paid a commission of two per cent, or $1,800; that in pursuance of the said employment the plaintiff induced and procured the Travelers’ Insurance Company to make the said loan, and that the same was consummated on or about February 24, 1910; that said commission remains wholly unpaid; that January 19, 1914, plaintiff commenced an action in said court against the defendant for the recovery of said commission, which action failed otherwise than upon the merits.
The answer admits that a loan of $90,000 was made to defendant on or about February 24, 1910, by the Travelers ’ Insurance Company, but denies the employment of the plaintiff, or that the plaintiff induced or procured the Travelers’ Insurance Company to make the said loan, or that the plaintiff’s efforts were accepted by defendant, or that they consummated the said loan. It is also denied that the former action failed otherwise than upon the merits, and the statute of limitations is pleaded in bar of the present action.
Trial was to a jury. A verdict was returned in plaintiff’s favor for $900 upon which judgment was entered. Defendant moved for a new trial and, the same being .denied, brought this appeal.
It is contended by defendant that the evidence was insufficient to support the verdict and that the verdict was against law; also, that the trial court committed errors in the giving of certain instructions to the jury.
The testimony, in substance, shows beyond any dispute that during the summer and fall of 1909 the defendant was desirous of procuring a $90,000 loan for which it was willing to pay 5 per cent, per annum and secure the same by a mortgage upon real property situate in Salt Lake City. Some ef
After the first visit of the plaintiff at the defendant’s office, in the summer or fall of 1909, the testimony is much in conflict as to what was said between the parties concerning the placing of the loan. The plaintiff testified that she advised the defendant, soon after her first visit at defendant’s office, that she was able to obtain a loan of $90,000 at five per cent, interest for either five or ten years, and that they said to her, “Go ahead, go right along”; that she was told this by Willard T. Cannon, a director of defendant company; that she met and conversed with Willard T. Cannon concerning the
”Q. "What was said between you at these different times? A. We just talked about the loan and how long it could be gotten for, and how much he wanted, and so on. Q. Was there anything said about how it was coming along — whether you were finding out or doing anything? A. Yes. He inquired if I had had word, and I told him yes, I had gotten word that the loan could be made, but it would take some time to close it. Q. Then you saw him on Main street, when he told you— A. Yes, about December, around the holidays, when he told me — tapped me on the shoulder and told me he didn’t want the loan; that he already had gotten it, and I didn’t need to trouble any more about it. I asked him where he got it, and he said Zion’s Savings Bank.”
The plaintiff further testified that she did not learn of the loan being placed by the Travelers’ Insurance Company until in the following March or February, when she saw a statement to that effect in a newspaper, or some one came to her and told her while she was ill in a hospital. The plaintiff-further testified that she personally did not make it a business to close up loans; that she negotiated loans by bringing the parties together. After plaintiff’s first visits at the office of the defendant when she was advised that a loan was desired, she approached one La Blonde, who had an office in the Continental Bank building and whom she at that time believed to be an agent for the Travelers’ Insurance Company, but who in fact was a real estate broker having no connection as agent or otherwise with the insurance company, and they together dictated a letter to the Travelers’ Insurance Company, addressed either to its Chicago or New York office, concerning the loan, to which a favorable reply was received. As to the contents of either letter the record is not clear. The letters were not produced by the plaintiff at the trial, and, as we think, the reason assigned by plaintiff for not doing so was not very satisfactory.
However, in November, 1910, after the loan of $90,000, as before stated, had been placed by the defendant with Zion’s Savings Bank, the testimony shows that Mr. Brigham T. Can
Mr. Brigham T. Cannon testified that he was not an officer of the Cannon company at the time the loan was considered and placed. He further testified that he, at the time, did not know that La Blonde had at any time communicated with any branch office of the Travelers’ Insurance Company, or otherwise, concerning a loan for the defendant; that he alone assisted Mr. Ellison in negotiating the loan with the defendant and in securing the necessary data and information whereby it was finally consummated, and that he at the time advised the defendant that one-half of the commission was to be paid to him and one-half to Mr. Ellison, which was paid by .defendant accordingly.
“You are instructed that if you find from the evidence that any officer of defendant, purporting or pretending to act for defendant, did employ plaintiff, and defendant did receive and accept the benefit of plaintiff’s services, although you may find that plaintiff was not employed in a formal way by the defendant corporation, or by any one having •authority from the defendant corporation to employ her in said matter, still said defendant is liable to plaintiff for the reasonable value of the services so rendered by her and accepted by the defendant. ’ ’
It is true, no formal proof was made in the trial of the case that the plaintiff was employed by any authorized officer or agent of the defendant company. However, we think this instruction of the trial court correctly stated the law. Had the plaintiff rendered the services and the plaintiff accepted them knowingly, no matter by whom she was employed, the defendant would be liable. The difficulty arises from the fact that there is no proof that the plaintiff rendered any services that were effective in procuring the loan upon which she seeks to recover a commission.
“If you find from a preponderance'of the evidence that the defendant employed plaintiff to procure said loan, and that, pursuant to said employment, plaintiff had informed Travelers’ Insurance Company that defendant wanted such loan on said property, and that defendant had knowledge that plaintiff was negotiating a loan, then you are instructed that if the plaintiff was not present when the proposed loan was consummated, if it was consummated, it was the duty of defendant reasonably to endeavor to ascertain from said Travelers’ Insurance Company by whom it was first informed that said loan was wanted.”
Counsel contends that in effect the court erroneously told the jury that it was the duty of the defendant, before eon-
While the authorities are not altogether harmonious on this question, counsel’s contention is supported by the opinion of this court in Young v. Whitaker, supra, which we think is right and must here control. Mr. Justice Frick, in the Young Case, speaking for this court and referring to the rule as laid down in Vreeland v. Vetterlein, 33 N. J. Law, 247, and other cases which he cites in the opinion to the same effect, says:
"Where, as in the ease at bar, the brokers apply to the seller for authority to sell property to a purchaser they have in view, and the owner grants them permission to sell, and acts in perfect good faith in selling the property to a purchaser produced by one of the brokers, we cannot see under what ‘rule of law or justice the owner may not safely pay the commission to the one who in fact produced the - purchaser. We further think that he is not required to first determine just what the other broker may have done in trying to effect a sale to the actual purchaser.” (Italics ours.)
It necessarily follows from what has been pointed out that the judgment in this ease must be reversed, and the cause remanded to the district couft, with directions that a new trial be granted the appellant. It is so ordered. Costs to appellant.