83 Miss. 656 | Miss. | 1903
delivered the opinion of the court.
■ The jury must have believed the following to be the facts: That Wallace had a contract, made on December 3, 1898, at Beauvoir, with Mr. Watson, acting for the Delta & Pine Lumber Company, by which he was to be paid 50 cents an acre for
We do not think the contention of learned counsel for appellant is sound — that Wallace was not entitled to a pro rata commission on the quantum meruit basis — under the peculiar facts of this ease. We think Wallace was entitled, on a quantum meruit basis, on the facts of this case, to the commissions on whatever land, as shown, he procured to be sold for Watson to Carrier. The case is covered perfectly hy that of Woods v. Stephens, 46 Mo., 556, and the ease of Martin v. Silliman, 53 N. Y., 615. The principle as laid down in the former is that Wallace fulfilled his contract, so far as permitted by Watson. The court say on the very contention made here: “The defense assumes one of two things: Either that, by his contract with his agents, the owner was bound to sell according to the terms furnished them, and had no power to vary them, or that, by a slight variance, after they had furnished the purchaser, he could defraud them of their compensation. Neither position has a show of reason.” In the New York case the court held: “Where a broker who. is employed to sell property at a given price, and for an agreed com
If the appellee will remit so as to claim commissions only on the 11,646.91 acres conveyed by the deed of March 15, 1899, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded.