96 P. 203 | Idaho | 1908
This is an action to recover a commission for the sale of real estate. Plaintiffs recovered judgment and.
Appellant owned four lots in the city of Pocatello, and on the 11th day of June, 1907, he went to the office of the real estate brokers, Church, White & Chilson, and not finding anyone in the office, left the following note on the desk:
“Mr. Earl White:
“See if you cannot sell those four lots 17, 18, 19 and 20 in Block 234; net me $1200 ; quick sale.
‘ ‘ Oblige,
“CHAS. DUNHAM.”
White testifies that on June 10th, the day before the note was written, he met Dunham on the street, when the latter told him that he would like to sell these four lots, as he was needing money, and wished he, White, would make a special effort to sell them for him; that Dunham told him he wanted $1200 and that all he realized above that might be retained as commission. White says that he went that afternoon to see the prospective purchasers, Ferrando and Benolken, and made an appointment to take them out to show them the property the next morning. At any rate, on the morning of the 11th, after this note was written and left at the office of respondents, one of the members of the firm took Ferrando and Benolken out and showed them the property and offered to sell it to them for $1350. Later in the day the purchasers offered White $1325 for the property. At that time it seems that White was going somewhere, or at least was engaged for the time being, but told them he would see them in a few hours. Before White returned to close the deal with these purchasers, he saw the owner of the lots and told him he had a purchaser and that he would make out the deed that afternoon and bring
“I went to see Mr. Dunham between 12 and 1 o’clock on June 11th. It was after I had been up to see the property. He was at home at the time. I told him at that time that I had been dealing with Church & White. He was lying down at the time on the lounge, and I asked him if he owned those four lots opposite the courthouse, and he told me yes. I asked him what he wanted for the four lots, and he told me $1200 net. I told him to come down to the Salt Lake saloon. He says, ‘Wait a minute; that these lots were in the hands of Church & White, and if they were not sold by 7 o’clock, to be down to meet him at the depot and make a deposit of $50 on the lots and they were mine. ’ He told me at the time that Church & White had the property for sale, but that if they did not make the deal during the day and by 7 o ’clock that evening, and I would meet him at the depot and make a deposit, I could have the property. When he told me his price was $1200 net, I told him I had offered them $1325. ’ ’
Dunham and the purchaser both agree that the latter informed Dunham that he had offered White $1325 for the property, and that White had refused to accept that sum, and that notwithstanding this information, Dunham offered to sell him (Benolken) the property for $1200 if it was not disposed of by 7 o’clock that evening. Later in the evening White saw Benolken concerning this sale and told him he was ready to take the $1325 he had offered for the property. Benolken made some kind of excuse, and among other things told him he would have to see his wife about it, and delayed the matter until about 8 o’clock, when he saw Dunham at the depot in Pocatello and made him a payment of $50 on the property and closed the deal for the purchase price of $1200. As soon as White learned that the sale had been made to this man, he demanded his commission of $125, and on refusal of Dun-
As we view the evidence in this case, it does not call for much discussion on the question of its sufficiency. It is clear to our minds that the respondents were entitled to their commission for securing a purchaser for this property. It is true that no fixed or definite time was given them in which to secure a purchaser, but it necessarily follows that they must have a reasonable time, and certainly the matter of one day would not be an unreasonable length of time to allow in which to secure a purchaser for such property. Another reason which is in itself sufficient and controlling in this case is that Dunham knew from Benolken himself that the respondents had been trying to deal with this purchaser, and had taken him out to show him the property and had made him a price on it. The owner who had listed his property with these brokers must have known that they would ask more than $1200 for the property since they were to secure him this sum net. When he learned that Benolken was a purchaser secured by the real estate brokers, and in the face of that knowledge informed the purchaser that his price on the property was $1200, and that if it was not sold by 7 o’clock that evening, that he, the owner, would sell it for the sum of $1200, he at once rendered it impossible for the brokers to secure $1325 from the same purchaser for the property, or any other sum greater than $1200. It is extremely difficult to understand why the owner of property who had listed it with a real estate firm and who had been informed that a purchaser had offered $1325 for the property, would turn around, and in the face of such information, take the sum of $1200 for the property and thus defeat the right of the brokers to secure their commission from the purchaser when the owner himself derives no advantage from such a transaction. We agree with appellant’s contention that under the law a broker who un
The appellant complains of the instruction of the court to the jury wherein the court told them that if any recovery could be had at all, the “plaintiffs are entitled to recover such amount as they would have realized on such sale except for the action of the defendant, not exceeding the amount claimed in the complaint.” In other words, the court told the jury that if they found that plaintiffs were entitled to recover at all, that the amount to which they would be entitled would be the difference between $1200 and the sum for which they could have sold the property to this purchaser. Appellant complains of this instruction for the reason that the plaintiffs alleged that $125 was a reasonable compensation to be allowed as a commission; that this instruction, therefore, took away from the jury the right of determining what was a reasonable amount. "We do not think this objection is well taken for the following reasons:
As we view tbe allegations of this complaint, in tbe absence of proper and timely objections taken by way of demurrer or motion, it would support a verdict and judgment either for the specific sum of $125 or for a reasonable commission to be determined from tbe evidence. On tbe other band, tbe facts disclosed by tbe witnesses on the stand as contained in this record show clearly that tbe plaintiffs were entitled to tbe fixed sum of $125 if they could recover at all, and tbe court was clearly correct in so advising tbe jury.
Appellant also complains of that part of tbe court’s instruction No. 2 wherein tbe court told tbe jury that if tbe jury found certain things therein enumerated to be true, then tbe “plaintiffs are entitled to recover, notwithstanding tbe actual sale was completed by defendant acting independently of tbe plaintiffs.” Appellant insists that tbe error in this instruction lies in the fact that it withdrew from tbe jury a consideration of the defense defendant sought to interpose, to tbe effect that be acted in good faith in selling tbe property to tbe purchaser for $1200. Under tbe facts in this case we think the court correctly advised tbe jury on that point. All tbe evidence in tbe case goes to show that tbe defendant did not act in good faith, and that bis defense to that effect was not well founded. Whatever be may have thought or intended, as a matter of fact, there is only one legal conclusion that can be drawn from tbe evidence, and that is to tbe effect that be was not acting in good faith with tbe brokers when be sold tbe property to their purchaser.
We find no error in the instructions of the court, nor did the court err in refusing to give the instructions requested by the defendant. Some of them correctly state the law, but go into matters apparently not involved in the evidence, while some of these requests do not correctly state the law as applicable to any case. The judgment should be affirmed, and it is so ordered. Costs in favor of respondents.