Charles E. Walters Co. v. Hahn

178 N.W. 448 | S.D. | 1920

WHITING, J.

Action to recover .broker’s commission claimed to have been earned by plaintiff through finding a purchaser ready, able, and willing to purchase certain property which defendant 'had listed with it for sale. Verdict directed for defendant. From the judgment thereon and from an order denying a new trial this appeal is taken.

[1] The listing contract was in writing and listed for sale a house and lot in this state, and stock in a bank organized and doing business within this state under the state banking laws. Plaintiff was a foreign corporation organized for a purpose that brought it under the provisions of chapter 172, Laws 1917, now sections 8900-8916, Rev. Code 1919 of this state. This statute requires all foreign corporations affected thereby, before doing business within the state, to file in the office of our secretary of state duly certified copies of their charters or articles of incorporation (section 8902,) and to appoint such secretary of state as their resident agent upon whom service of summons, notices, etc., may be made (section 8903.) A failure to comply with such requirements subjects such corporations tQ a money penalty .recoverable by the state (section 89x0.) Section 8909 provides:

“Every contract made by or on behalf of any foreign corporation, subject to the provisions of this chapter, affecting the personal liability thereof or relating to property within this state, before it shall have complied with the provisions of this chapter, shall be -wholly void, on its behalf and on behalf of its assigns, but shall foe enforceable against it or them.”

One of the grounds upon which the motion for directed verdict was ¡based was plaintiff’s failure to comply with the provisions of sections 8902, 8903. Unless the record shows that plaintiff was doing business in this state or that the contract was one “relating to property,” it is clear that the provisions of the above sections do not affect plaintiff’s right of recovery. Plaintiff contends that the contract was entered into in another state, and that it did no business in this state. We deem the place of the contract to be immaterial. There was no “doing of business” in this state; but one transaction was proven, and it is established -that the entering into of 'but a single transaction is not the “doing of business” under such a statute, 12 R. C. D. 69, and cases cited.

[2] The contract was one for personal service. While the contemplated service was the finding of a purchaser of property located in this state, neither the contract itself nor the full performance of its terms would in any manner affect the property or the title thereto. We therefore hold that the contract was not one “relating” to the property. Stablien v. Gemiende, 177 N. W. 810, decided at this term.

[3] Defendant also moved for directed verdict on the ground that it appeared undisputed that, prior to the time when plaintiff had procured a purchaser for the bank stock and residence, defendant had himself sold same, “and thereby the agency contract between the plaintiff and defendant became automatically cancelled and rescinded.” The contract provided:

“I reserve the right to withdrawn this stock and property from the market at any time I desire on ten days’ notice to you in writing.”

Plaintiff maintains that, under such provision, defendant could .not withdraw it before the expiration of the 10-day notice. Notice of withdrawal .was given, but the purchaser was pro-duced within 10 days after such choice was given. Therefore the only question presented by such motion was whether the defendant had a right to sell, and thereby terminate the contract without notice. It is defendant’s contention that this contract did not give plaintiff the exclusive right of sale. This contention is sound. “The right of an owner to sell his own property is an implied condition of every contract of agency, and, unless expressly negatived, will prevail.” Dole v. Sherwood, 41 Minn. 535, 43 N. W. 569, 5 L. R. A. 720, 16 Am. St. Rep. 731; Ingold v. Symonds, 125 Iowa, 82, 99 N. W. 713. jAind in case of such a sale by the owner, where, as in this case, the contract does not give the exclusive sale, the agent or broker cannot collect commissions where he is not instrumental in procuring the purchaser to whom the owner sold. Dole v. Sherwood, supra; Ingold v. Symonds, supra; 9 C. J. 575, citing numerous decisions in support therof; 4 R. C. L. 318.

[4] It follows that the giving of the notice is an absolutely immaterial fact. Plaintiff is in no better position than if no notice had 'been given. Its rights were at all times subject to the right of defendant to sell the property himself. If defendant had not consummated a sale before giving the notice, the giving of same in no manner affected his right to make a sale within the io days. He had the same right to make a sale during that period as he ‘had before, and when he consummated the sale the agency ¡was terminated, and plaintiff ceased to have any rights as an agent or broker, even though he was in ignorance of the fact of sale. When he took a contract not exclusive in character, he took it .knowing of the right of defendant to make a sale at any time. There seems to he absolutely no conflict in the authorities on this point.

The judgment and order appealed from are affirmed.