114 P.2d 457 | Okla. | 1941
This is an action brought by the plaintiff, R.C. Pattison, to recover $200 for and on account of the sale of certain real property of O.J. Cales, defendant, as commission for said sale.
The petition alleges that plaintiff and defendant entered into an oral contract by the terms of which defendant agreed to pay the plaintiff $100 for the sale of said property for $4,500, or $200 for the sale of the property for $5,000; that plaintiff found a purchaser, to wit, the Olson Drilling Company, who purchased said property for a consideration of $5,000 by a conveyance of the real property from the defendant direct to Olson Drilling Company; that the plaintiff made a demand upon the defendant for the said sum of $200, and that the defendant refused to pay the same. Issues were joined by answer. After demurrer to the evidence and motion for directed verdict by the defendant were overruled, a jury returned a verdict for $200, the amount sued for. Judgment was entered on the verdict, and the defendant appeals.
Six allegations of error are presented. In the first three allegations of error the defendant alleges that the trial court erred in overuling the demurrer to the evidence and refusing to direct a verdict for the defendant.
The record discloses that plaintiff lived on four acres of a farm of approximately 160 acres owned by the defendant. Defendant had advertised the farm for sale at auction on June 15, 1939; the farm failed to sell upon said date, whereupon plaintiff made a proposition to the defendant to sell the farm to the Olson Drilling Company, and it was agreed that if the farm sold for $4,500, plaintiff was to receive $100 as commission, and if it was sold for $5,000, his commission was to be $200; that in pursuance of said agreement plaintiff contacted Art Olson, president and general manager of the said Olson Drilling Company, together with at least one other agent of said drilling company; that by reason of said efforts on behalf of said plaintiff the farm was sold direct to the Olson Drilling Company by the defendant on the 17th day of August, 1939, for and in consideration of a sum equal to $5,000.
Defendant asserts that there is no evidence to show that the plaintiff was *161
the procuring cause of the sale. Whether a broker is a procuring cause of a sale is usually a question of fact for the jury. 8 Am. Jur. § 214; Treese v. Shoemaker,
There is nothing contrary to this rule in the authorities cited by the defendant. Defendant alleges that he discharged the plaintiff, if he were ever hired, and cites in support of such right Bunnell v. Frederick,
"The principal cannot discharge the broker pending negotiations by the latter with a prospective customer, in order to effect a sale to the latter himself without being liable to the agent for the commission."
It is claimed that the defendant alone concluded the sale separate and apart from the efforts of the plaintiff. A condition similar to the one at bar was presented in Petroleum Pipeline Co. v. Lundy, supra, in which it was urged that oil was sold in good faith under arrangements later made by the principal with the purchaser, and this court stated that the evidence as to whether the agent was the procuring cause was in substantial conflict and presented a jury question.
We think there is evidence sufficient to sustain the finding of the jury on the question as to the procuring cause, and the court did not err in overruling a demurrer to the evidence and in refusing to direct a verdict for the defendant.
The three remaining allegations assert error in refusal to give certain requested instructions. Requested instruction No. 1 was to the effect that if the contract was different from the one proposed to be negotiated, the broker must be the procuring cause before he can recover. Requested instruction No. 2 relates to the procuring cause. Both of these requested instructions and the issues involved were clearly submitted in the general instructions of the court. Instruction No. 3 was to the effect that if the plaintiff did not inform the defendant he was negotiating with the Olson Drilling Company, then the verdict should be for the defendant. Defendant cites in support of the alleged error in failing to give this instruction, Las Vegas Realty Ins. Co. v. Sparks,
A careful examination of the record discloses no prejudicial error, and the judgment of the trial court is affirmed.
WELCH, C. J., CORN, V. C. J., and RILEY, OSBORN, and DAVISON, JJ., concur.