153 Iowa 747 | Iowa | 1912
Plaintiff claims that on or about the 15th day of September, 1908, he and the defendant herein entered into an oral agreement, whereby the plaintiff was to exercise his skill in porcuring for the defendant a purchaser of his farm, and if the farm was sold as a result of the plaintiff’s efforts in procuring, sending to, or bringing to the defendant a purchaser for his farm, then the plaintiff, T. B. Fenton, was to have and receive from the defendant as his compensation, the sum of $1 an acre for each acre so sold. Immediately, plaintiff put forth every effort in seeking a purchaser, and afte-r a diligent search his efforts were finally rewarded and the farm sold to one D. M. Lorenzen.
The testimony shows that defendant listed his' farm with the plaintiff for sale, but at the time refused to give him an exclusive agency, notifying him that he had already listed the land with another agent named Barnes. One Lorenzen was also the owner of a farm in Oherokee county, which he had listed with the plaintiff for sale; but this listing was conditioned upon Lorenzen’s being able to purchase another farm. At the time the defendant listed
In order to indnce Lorenzen to sell, plaintiff tried to interest him in other lands, and, 'after showing.him a tract, Lorenzen spoke about defendant’s farm, saying that he had seen it advertised for sale in a newspaper by Barnes; that he had spoken to Barnes about it' and had been down to see it, but that Miller, the defendant, was not at home; that later he wont over the farm with defendant and then saw Barnes and had a talk with him about the matter before anything was said by him to plaintiff or by plaintiff to him about the property. Later Lorenzen again saw plaintiff and urged him to sell his farm, as he wanted more land, but at .all times asserted that he would not sell unless he was assured of another farm. Plaintiff then sent his brother with Lorenzen to look at defendant’s farm, but defendant was not at home, and later plaintiff and Loren-zen went to see defendant, took dinner with him, and talked over the sale. Some talk was had about the price, and defendant said he would not take less than $100 per acre. No conclusion was reached on that day, but defendant said he would come up next'day and try to close the deal; that if Lorenzen would take his land at -the price fixed, terms could be agreed upon. On this next day plaintiff sold the Lorenzen farm, but before closing, he telephoned defendant and asked if he would come up as agreed and clase the deal with Lorenzen, to which defendant responded that he would. On the next day, which was February 6,
Miller said, ‘Fenton, I didn’t know you bad tbe sale of this farm,’ to which plaintiff responded: ‘Is that so, Mr. . Miller ? How did that happen ?’ Miller said: ‘Why I don’t know. I understood Barnes sold it. You have nothing to do with this deal. This man is Barnes’ man. Barnes informs me be has made this deal.’ Plaintiff then said: ‘Is that, so? Let’s get Mr. Barnes, in.’ It took a little time to get Barnes in, and before be got in Miller says, .‘I knew, Fenton, you did tbe work, but I understood you were working for Barnes.’ Plaintiff responded: ‘Well, Mr. Miller, tbe day you came into my office I told you I didn’t work with anybody, and if you thought I was working with anybody else but myself down there, and when I called you up over tbe phone, why didn’t you say so? ‘Ob’, be says, ‘I didn’t know; but now I undestand Barnes claims be has made this sale, and I am not going to pay two commissions.’ Plaintiff then said: ‘I don’t blame you for that.’ And I think then Barnes came in, and be claimed to have made tbe sale, and, of course, Mr. Miller refused to acknowledge me as' tbe man that was making the sale there.
We now quote from tbe record tbe following:
Mr. Lorenzen came down, and we talked a little while about tbe price, as we bad not decided on tbe price, exactly, and I said: ‘Well, bow about tbe price, Miller? What do you have to have for that farm?’ And be says, ‘$100 per acre,’ and I was looking at Lorenzen, and I says, ‘I guess you have got to pay the $100 per acre,’ and Mr. Loren-zen walked over to Mr. Miller, and they stepped outside and talked a little, and then Mr. Barnes drew the contract of sale, and I was there, and they wanted to get earnest money, and they didn’t have anything, and I said I would go and get the money I bad received for tbe note. It was
Plaintiff further testified as follows regarding the first talk he had with Lorenzen about the defendant’s farm:
I got into conversation with Mr. Lorenzen about this place the day we were looking at the Jeffery farm, south of Cleghom. Lorenzen would buy 'the Jeffery farm if I could sell his (Lorenzen’s) farm before the Jeffery farm was sold. Coming home from the Jeffery farm, one of us mentioned the Miller farm, and he told me Barnes had talked -with him about it, and he had been past the place. I think he said he saw Barnes had it advertised, and I told him he had, and we talked about it being advertised by Barnes, and I think he said he had been in the bank and spoken to Barnes, or Barnes spoke to him, I don’t know which, and he told me he had been by the place, but I don’t remember if he told me he and his wife 'had been down and looked at the «place. My brother was working for me, and I sent him down with Mr. Lorenzen to give him a chance to- thoroughly look over the place with the intention of buying it. Q. You knew at the time Mr. Lorenzen had looked over the farm, did you not? A. From.what he said to me he hadn’t looked over the farm. That makes me think that he did say before that his wife had been with him, and they stopped and looked at the house, I believe. That makes me think, his wife was down with him one time, before we were out to the Jeffery farm. I brought Mr. Lorenzen to Mr. Miller as a buyer for that farm, February 4, 1.908, and we talked about it all afternoon and until we left for home towards evening. At that time I had not closed the sale of Lorenzen’s farm, and he would not sell unless he could find another farm to buy. That was not the reason, in particular, that I went down to see Miller that day. I wanted to sell Lorenzen’s farm, and I wanted to go down and look at it as quick as I could get him to make a deal. In trying to sell Miller’s place I was working for Miller.
Defendant testified that he attempted to list his property with jilaintiff, but was unable to do so because plaintiff insisted upon an exclusive agency; that he had already listed the farm with Barnes, and so informed the plaintiff; that upon plaintiff’s refusal to accept the proposed agency he had no further talk with plaintiff until he and Lorenzen came to his place, stopped for dinner, and talked in a general way about the farm and the price for the same. He further testified that Barnes sold the farm and that he paid him a commission for making the sale. He further testified that he talked with Lorenzen about the sale before plaintiff brought Mm down; that he agreed with him (Lorenzen) to meet and arrange about the sale; that the next time he saw Lorenzen plaintiff cam© with him; that they did not look over the farm, but had considerable conversation regarding terms and price. He admitted having a telephone communication with plaintiff, but denied that he did more than promise to meet plaintiff and Lorenzen the next day. We now quote from the record this further testimony given by defendant:
Q. Don’t you know that Mr. Fenton told you over the phone that Mr. Lorenzen would not accept any payment on the purchase price of his farm until he knew that he could buy -this ? A. No, sir; I understood this condition all the time. I didn’t hear that over the phone. I went to town the next day and was asked.to come up to Fenton’s or Radcliffe’s office, I am not sure which. I was doing some banking business with Mr. Barnes at the time, in his bank, and met Fenton there in the lobby of the bank. Q. And the terms and price were talked about at this time,
Lorenzen, the purchaser, testified in substance, as follows:
I lived four miles south of Marcus, and the Miller farm was nine miles south of my place. I got my first information that the farm was for sale by seeing it advertised in the paper by Mr. Barnes. After seeing the advertisement, I went into the bank at Marcus and saw Mr. Barnes about it. I asked him where the farm was he had for sale, and he told me, and I said if it was not any further than that I would drive down some day and see it. I drove out and around the farm and looked at it. I didn’t find any one at home that day. Then my wife and I went down about a week after that and found Mrs. Miller at home. We drove all over the farm and examined the house, barns, cribs, and everything. Then I saw Mr. Barnes again and told him we had been out there and looked at the farm, and I said the price was a little steep. He said it was a good farm and could not be beat for the improvements and fences, and I told him I knew that it was that way. I went down again alone, and Mr. Miller was at home that day, so I and him we went over the field, but we didn’t take no time. The Court: Was that before Fenton had talked to you about it? A. ' That was before Fenton had anything to do with it. I talked about the price and asked him if that was the lowest, $100, and he said, ‘Yes.’ After that I was up to Fenton’s office one day, and we got to talking about the Miller place, and he said he wouldn’t doubt but after a while he would have it, and kind of wanted me to wait until that time. He did not claim to have the place for sale then. He said that if I would wait a while we would drive out and look at it, and, of course, I waited, and pretty soon, it wasn’t long, until his brother came and took me out. He claimed he had it for sale. I think that was a little after the 1st of January, but I am not sure about that. When Billy Fenton took me out, there wasn’t any one at home, and about a week later Tom Fen-ton, the plaintiff, took me out. He said he thought he could get it- a little cheaper. He thought he could get it
Barnes was also a witness, and the substance of his testimony is as follows:
I was employed by Mr. Miller, November 3, 1908, to sell his farm. Q. AVhat were the terms as given to you, as to the price ? A. The price was $100 per acre. Q. AVhat did you do, Mr. Barnes, with relation to making the sale of the farm? A. I immediately put an ad in the Marcus News that I had the farm for sale. In about two weeks Mr. Lorenzen came in and saw me about it and asked about the terms, and I told him about it, and he said he would go and see the farm. I told him I could not very well go out, but for him to go and look the farm over with Mr. Miller, and if the farm suited him we would try and make a deal. He said he had to sell his farm, and if he could sell it he would look this farm over and come again. He came back in a few days and said he had been out, but was going again, and would take his wife with him. After he had done that, he came in, said they had been to see the farm, and looked it all over, and had looked at the buildings, but he hadn’t yet made up his mind whether he would have it. We talked the matter over and talked about the advantages of the farm and how it was fenced and about the buildings and improvements, and I endeavored to sell him the place. I saw him several times after that. Whenever he came into the bank we talked it over. • I think three or four times during the winter. I told Mr. Miller what I had done, and that later, if he sold his farm, I would be able to make the deal at $100 per aere. I knew Lorenzen had to sell before he could buy. I could not say whether we talked again after that before the consummation of the deal on the 6th day of February, 1908. At that time I was in the bank, and Mr. Miller came in, and, after waiting a while, Mr. Lorenzen came in, and the three of us talked it over. Later, Mr. Fenton came in, and it was after he came in that the contract for the sale of the farm was made. Before Mr. Fenton came in, we had agreed up
Upon this testimony the case was submitted to the jury, with the following relevant instructions:
(4) You are instructed, as a matter of law, that in cases of this character, to entitle a real estate broker to recover a commission for procuring a purchaser for the lands of another, there must be a contract of employment between himself and the- owner, whereby the owner employs and promises and agrees to pay the broker a commission for such services. And it must also be shown that it was through the efforts and inducements exerted by the broker that the purchaser and the owner were brought together, and induced to enter into and continue the negotiations which finally culminated in the purchase.
And where the owner has listed the land under such a contract with two real estate brokers, both of whom work upon and use their efforts to secure the customer who makes the purchase, that one only will be entitled to the commission whose efforts and persuasions were the main and moving cause of inducing the customer to meet with the owner and take up the negotiations which finally culminated in the sale. And where the owner and purchaser have already been brought together and are in the course of negotiations through the efforts of one broker, and thereafter the other broker takes up the matter, and attempts to procure the purchaser as a customer for himself, the latter will not be entitled to a commission for his services, unless it appears that the negotiations induced through the efforts of the first broker have been broken off or abandoned, so that the efforts of the first are not the principal and moving cause by which the purchaser was induced to again take up or renew the negotiations and complete the purchase, and that the efforts and persuasion of the latter were the principal. and moving cause of bringing the parties together again, and taking up the negotiations which finally resulted in the sale.
(5) If you should find from the preponderance of the evidence that on or about the 15th day of September, 1908, the defendant listed the tract of land in question with the plaintiff, and then and there orally promised and agreed
If you do not so find, or if you believe from the evidence that there was no contract of employment between the parties whereby the defendant listed his land with the plaintiff and promised and agreed to pay him a commission of $1 per acre in case he should succeed in finding and procuring a customer, or that in substance, or if the efforts of the plaintiff, if any expended by him upon the said Lorenzen, were not the main and moving cause which brought the parties together, and induced the said Loren-zen to enter into or continue the negotiations and complete the purchase, as hereinbefore stated and explained, then the plaintiff can not recover anything in this action, and your verdict will be for the 'defendant.
In view of the contentions made for appellant, it has seemed necessary to quote from the record even at the expense of brevity; for the principal point made is that there should have been a verdict for the defendant under the testimony adduced.
Ordinarily, the question as to whether or not a broker’s efforts -are the efficient and procuring cause of a sale is one of fact for a jury. Hanna v. Collins, 69 Iowa, 51. And it follows that where two or more agents have the property listed, and each does something toward effecting a sale, the question as to which one’s efforts induced it is also for a jury.
No prejudicial error appears, and the judgment must be, and it is, affirmed.
