117 N.W. 344 | N.D. | 1908
¡Plaintiffs, who were real estate brokers, recovered judgment in the lower, court for certain commissions alleged to be
That the judgment and order appealed from are erroneous and must be' reversed is too clear for serious debate. The complaint wholly fails to allege, and the proof wholly fails to establish, any cause of action, and the findings of fact do not warrant the conclusions of law. Our reasons for the above assertions will be briefly stated. Plaintiffs’ cause of action as set forth in their amended complaint is in substance as follows: (1) That at all times mentioned plaintiffs were engaged in the business of selling real estate. (-2) That on or about September 25, 1902, defendant listed with plaintiffs for sale 720 acres of land in Bottineau county, under an agreement that plaintiffs should advertise the same for sale and introduce prospective purchasers to defendant, the latter to quote and maintain the price at $21.50 per acre as to all such prospective purchasers thus introduced by plaintiffs, and that, if plaintiffs secured a purchaser for said land, defendant would pay them the sum of $1,080. (3) That, pursuant to such agreement, plaintiffs advertised said land for sale, and on or about October 11, 1902, secured a prospective purchaser in the person of one McNett, whom they introduced as such to defendant. (4) That under such agreement plaintiffs were to receive for their services all sums over $20 per acre. (5) That a sale was made to McNett at a less sum than $21.50 per acre (but without stating any price), and that such sale was made without notice to plaintiffs and with intent to defraud them out of any compensation, to their damage in the sum of $1,080. At the trial plaintiffs asked for, and were granted, leave to amend paragraph 4 of the complaint, so as to read: “That the defendant has made a sale of the aforesaid land through the aforesaid W. E. McNett to one whom the plaintiffs are informed and believe is named Johnson, and has refused and still refuses to pay the plaintiffs.” Conceding that such amendment was thereafter made, of which there is no proof, and also conceding that the same was intended to and did amend paragraph 5 of the amended complaint, instead of paragraph 4 of the original complaint, as no doubt was the inten7
Coming to the evidence, we find our construction of the complaint relative to the terms of the contract fully corroborated by the plaintiff’s own testimony, and nowhere is it contended that plaintiffs produced a purchaser willing to purchase, or that defendant, in fact, sold the property or that he had any opportunity to' sell it
It follows as a necessary conclusion from what we have above held that the judgment and order appealed from must be reversed, and the cause remanded for further proceedings according to law, and it is so ordered.