Fultz v. Wimer

34 Kan. 576 | Kan. | 1886

The opinion of the court was delivered by

Horton, C. J.:

The facts in this case are substantially as follows': On June 18, 1881, David J. Wimer executed and delivered to George R. Fultz a written agreement describing his farm and authorizing Fultz to sell the same for $1,300, and providing that the land should be left with Fultz for sale for two months from said June 18th. The contract contained this provision:

“ If said lands, or any part thereof, are sold by myself or others during said two months, I will pay George R. Fultz his commission thereon at the following rates, viz.: On sums of $500 and under, 10 per cent. -; on sums from $500 to $1,000, 7 per cent.; on sums from $1,000 to $2,000, 5 per cent.”

Fultz took O. Galli out and showed him Wimer’s land and tried to sell it to him at two different times; on the second trip they found Wimer at home, and Fultz introduced Galli to him, informing him that he, Galli, wanted to buy his farm. They talked the matter over and a sale was agreed upon, the consideration being $1,300 and the putting in of some wheat. The money, however, was to be paid by September 1, 1881. Wimer was to stay upon the land until spring. Five or six days before the written contract between Wimer and Fultz was to expire, Fultz had a talk with Wimer at Wellington, and informed him that Galli wanted ten days longer to pay his money. Wimer granted it, and said he would accept the money and complete the sale if it was paid in that time. About the time the extension of ten days was up, Fultz received a letter from Galli that he could not get his money in time. Fultz then had a talk with Wimer, and wanted him to grant further time. Wimer did not grant any further time, but Fultz wrote a letter to Galli that he believed Wimer would give the extension of time asked for, and to send his money on. About September 15, 1881, Galli sent $200 to a friend of his, one John Nichols, to pay on the land. On September 24,1881, Wimer and said Nichols, as the agent for Mr. Galli, went to the office of Fultz at Wellington, and at their instance Fultz drew up a written contract for the sale of the land from Wimer to Galli, and Wimer paid him for writing the same. The contract recited the payment of $200 cash in hand; $720 to be paid on January 2, 1882, without interest; and $380 to take up two mortgages, one due in October, 1882, and the other due in January, 1885, and also the intei’est on the mortgages from September 24, 1881.

Contract — time of its essence; no recovery. Upon these facts, we do not think that the plaintiff was entitled to recover the $65, or any part thereof, which he alleged to be due him for services rendered the defendant in and about selling his farm. Therefore the trial court committed no error in sustaining the demurrer interposed. Upon the pleadings, the plaintiff is bound by the special contract, and to entitle him to recover he must show that he complied with his part of the agreement and sold the land within two months from June 18, 1881; or that he sold the same within the time to which the contract was extended. Courts can only enforce contracts as the parties themselves made them. Under the terms of the contract, the land was to be left in Eultz’s hands for sale for two months; during this time even Wimer had no right to make any sale thereof without paying Fultz his commission. If Fultz failed to make a sale of the land within two months after June 18, 1881, under the contract, he lost all his labor and expense in making the effort. It is true that Wimer extended his contract with Fultz for ten days, and if Fultz had made the sale before such extension had expired, he would have been entitled to his commission ; but no sale was made within the extension. Several days after the extension granted by Wimer had expired, Nichols, as agent for Galli, saw Wimer and agreed upon terms of sale of the land, which, instead of being $1,300 cash in hand, was $200 cash down; $720 on the 2d of the following January; and the remainder to take up two mortgages as they became due. It is doubtless true that Fultz was instrumental in enabling the defendant to sell his land, but as Fultz and Wimer had entered into written stipulations as to the terms upon which Fultz was entitled to commission, these stipulations must control. Fultz failed to find or produce a purchaser ready and willing to take the farm and (1 ,¶ . , pay the money within the time prescribed m the x written contract, or within the time that Wimer extended such contract, and Wimer was under no obligation to wait any longer that he might make further efforts. (22 Cent. L. J. 466; Wylie v. Bank, 61 N.Y. 415.) After the extension of the contract had expired, Wimer had the right to sell to Galli or to anyone else; and under the written contract he was not liable to pay to Fultz his commission, or any other sum, because, after the expiration of the extension of the contract, the contract had spent its force. (Coleman v. Meade, 13 Bush, 358; Charlton v. Wood, 11 Heisk. 19.) If the delay in closing the sale between Galli and Wimer had been caused by any negligence, fault or fraud of Wimer, Fultz would be entitled to his commission, but the evidence shows nothing of this kind. Wimer acted in the best of faith and was very desirous, being over-anxious, for Fultz to produce a cash purchaser upon the terms prescribed in the written contract.

Counsel suggest that Wimer’s words “led Fultz to believe that he would extend the contract” the second time, and therefore, that as he subsequently let Galli purchase the land, he should pay the commission. Although Fultz testified that Wimer led him to believe he would again extend the contract, yet he gave in his testimony the substance of his conversation with Wimer at the time he made the application for the second extension, and it is quite clear that Wimer gave no consent to any second extension. If Fultz had any belief that he would make a further extension, it grew out of the fact that he knew that Wimer was pressed for money and was anxious to make a sale, not that Wimer said or promised such further extension.

The judgment of the district court must be affirmed.

All the Justices concurring.