193 Iowa 1183 | Iowa | 1922
— -The defendants introduced no evidence, and in argument tliey concede that there is no conflict in the evidence introduced on the trial after defendants’ motion for change of place of trial was overruled. There is no conflict, but there is a question whether plaintiff made a case against Mrs. Delfs. We shall spend no time on the claim of plaintiff that defendant M. EL Delfs employed plaintiff and listed the farm with him for sale, and orally agreed to pay him $1,000 if he found a purchaser who would buy on the terms and conditions made by said defendant; that, on August 4, 1919, plaintiff found a purchaser who was ready, able, and willing to buy the farm at the price and on the terms and conditions proposed; that defendants failed, neglected, and refused to sign the contract or to let the purchaser have the land; and that, therefore, he had earned his commission. A second count of the petition is to the same effect, except that the services performed by him were of the fair and reasonable value of $1,000. Plaintiff testifies that such was the value. There is more or less of a conflict in the evidence presented by affidavits in support of and resistance to the motion to transfer to Tama County. As is often the case, some of the statements in the affidavits are, to a certain extent, in the nature of conclusions. It appears that, when plaintiff had secured a purchaser, Downs, plaintiff prepared a written contract in accordance with the terms proposed by defendant M. El. Delfs, and thereafter read the same over the telephone to said defendant, at Gladbrook, where defendants lived, who stated that the contract as drawn was all right. Both plaintiff and the purchaser talked with said defendant over the phone in regard to the matter. Thereafter, Downs signed the written contract, and it, with the $1,000 cheek of the purchaser, was sent to defendants at Gladbrook by mail for their signature. The defendants refused to sign, and the contract and check were returned; whereupon plaintiff signed defendants’ names to the contract, by himself as agent, and as agent acknowledged the execution of the contract, as did the purchaser; and, as we understand it, the contract was duly recorded. The matters last referred to occurred in August and September, 1919. The petition was filed November 5, 1919. By cross-petition, defendants
There are three propositions in the case: First, as to the alleged error of the court in overruling defendants’ motion for a change of place of trial; second, whether there was a performance by plaintiff and the purchaser by tendering a check for $1,000, when the written contract before referred to provides that $1,000 shall be paid in cash, upon the execution of the contract; third, whether, even though the husband had authority from his wife to rent and manage the farm, he could thereunder bind lier to a sale of the land.
“Deal to be closed at Osceola, Iowa, and all papers to be deposited in Osceola National Bank.”
It is not clear from the record whether the land was owned by defendant Mary H. or by her and her husband, M. Ií. .The petition alleges that defendants are husband and wife, and that they own, and have for several years owned, the land in question, the record title of which stands in the name of defendant Mary II.; and that defendants, through defendant M. H. Delis and his son Julius A., listed the farm with plaintiff for sale, etc. In the defendants’ cross-petition, they allege that they own the land described in the petition. This admission was offered in evidence by the plaintiff on the trial of the case. Before answering, defendants filed their joint motion for change of place of trial to Tama County, Iowa, because of their residence therein, and because, as they state, neither of the defendants has ever had any agency in Clarke County for the transaction of any business. The application is supported by the affidavits of both defendants and their son Julius; also the affidavit of defendants’ attorney, as to the claim for attorney’s fees and expenses. The substance of the affidavit of defendant Mary Delfs is that M. II. is her husband; that she is 50 years of age, and he 70; that both have been residents of Gladbrook, Tama County, for the last 20 years; that neither has resided in Clarke County; that they never had any office or agency in Clarke County for the transaction of business; that her son Julius is not a resident of Clarke County, and never .has been, and has never had any agency for the transaction of business in said county; that neither her son nor plaintiff had any authority from her to sell the land or to contract to sell it on the terms and conditions set forth in the petition or in the contract; that, if plaintiff, signed her name and the name of her husband to the contract, it was entirely without any authority from her,, unauthorized and unwarranted; that she never instructed or authorized her son or her husband or any other person to hire for her any agent, or to employ plaintiff or any other person to sell for her, or to offer to sell her farm and real estate in Clarke County;
The plaintiff’s resistance to the application is accompanied by affidavits of plaintiff, and of Jesse Bailey, Minnie Bailey, Ira Short, and Downs. Goodman’s affidavit shows that he is a resident of Osceola, and has been for five years, all of which time he lias been engaged in the real estate business, and has
The plaintiff says that the statements in the petition are true, and the same is made a part of his affidavit, by reference.
The affidavit of Jesse Bailey, the tenant for several years last past, says that he has rented the farm through and from’ plaintiff; that lie talked with him about the terms and conditions of the rent, and about the materials and supplies needed on the farm; that he talked-with the defendant M. H. Delfs, who has told witness that plaintiff was authorized to rent the farm, was his agent, with authority to look.after it, and for witness to confer with plaintiff about what was needed on the place; that plaintiff came to the place repeatedly, and on several occasions with defendant M. H. During all of said time, plaintiff had an office and place of business in Osceola, where witness largely did the business with him of the management, looking after, and control of the farm. He knows that, during all of said time, plaintiff showed the farm to prospective buyers. The affidavit of Bailey’s wife is substantially to the same effect, but with less detail.
The affidavit of Short, formerly a partner of plaintiff’s, is to the effect that he knows that plaintiff looked after, took care, of renting, and largely controlled the farm of defendants; that he is acquainted with defendant M. IT., who told witness that plaintiff was the agent of himself and wife, to rent said farm and to sell the same, and that Goodman was located at Osceola, where he could easily find buyers, and that said defendant expected plaintiff to manage and sell the farm from said place; that defendant M. H. was at plaintiff’s office repeatedly, and witness personally heard him tell plaintiff to sell the farm, and to find a buyer; that he knows of plaintiff’s consulting and conferring with the renters on the place, at his office; that plaintiff rented the farm on several different occasions, looked after the management and control of it, made trips to the farm to look after it, and trips to, the farm in company with defendant M. H.; that'defendant M. H. made his headquarters at plaintiff’s office when in town; that he knows of plaintiff’s showing the
The affidavit of Downs is to the effect that he is a resident and citizen of Osceola, and has been for five years; that he is personally acquainted with plaintiff; that, last summer or fall, plaintiff offered and proposed to sell witness the farm in question; that witness accepted the proposition, and agreed to take the same, and a written contract was made and entered into, and the same was signed by him and by plaintiff, as the agent of the defendants; that he personally called defendant M. H. over the phone, and talked with him about it; and that he said the terms and conditions proposed by Goodman were satisfactory, and he would sell thereon, also said that plaintiff was his agent, and had authority to sell the farm, that he had listed it with plaintiff, who had looked after it and taken care of it for some time; that witness transacted the business in regard to the purchase of said farm with plaintiff at Osceola, and largely at his office.
This is the substance of the evidence contained in the affidavits. In addition to the evidence of Downs in the foregoing affidavit, and what has been heretofore set out, he testified, on .the trial of the case, in regard to going over the matter of the purchase with defendant M. II. over the phone, and the details of that, and further, he testifies that he told M. IT. that possession would be required the first of March, and that said defendant said, “All right;” that said defendant made no objections to any portion of the contract; that witness asked defendant if he was paying’ a commission, and said he would not buy anything with the commission attached; and that defendant said he was paying a commission, and that the commission was a thousand dollars; that he told defendant over the phone that plaintiff would send the contract out that night, told'him that he had already signed the contract, and would send a check for $1,000; and that defendant said that was all right, and that the contract would be signed and returned. This evidence is here set out for its bearing upon the second proposition in the case, as before stated.
1. On the first proposition, appellant cites Code Sections
“When a corporation, company or individual has an office or agency in any county for the transaction of business, any actions growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located. ’ ’
Much of the evidence before set out, in the showing by plaintiff, as to his management of the farm and the conversations with defendant M. H. in regard to selling the farm, and shewing it to prospective buyers, and so on, is denied in the affidavits presented by defendants. Though, as before stated, there is more or less conflict and a statement of conclusions in the affidavits, the trial court, upon such affidavits, has found for plaintiff, and that there was an office and agency of the defendants- in Clarke County, and that the matter in controversy grows out of and is connected with the business of such agency. The question is whether, taking all the facts and circumstances shown by plaintiff’s affidavits, though contradicted to some extent by the affidavits on behalf of defendants, such facts are sufficient to sustain the ruling of the trial court, and to show an agency there. We think the showing is sufficient. We held, in Locke v. Chicago Chronicle Co., 107 Iowa 390, 394, that whether defendant had an agency in Polk County, within the meaning of the statute, for the transaction of business, and whether the action grew out of or was connected with the business of that agency, were not questions of law, but of fact, for the determination of the court trying the facts; and that its findings as to them had such support in the evidence that we were not authorized to disturb them. See, also, Gross v. Nichols, 72 Iowa 239. In Gilbert v. McCullough, 140 Iowa 362, the-action was brought in Woodbury County. Defendant resided in Dubuque County, and owned a lot in Sioux City. Defendant had an agency in Sioux City, charged with the renting and caring for
“That the plaintiff did have an agency in Sioux City cannot well be disputed. Although the agent was not authorized to bind the principal by a sale, he was authorized to receive and 'forward bids for the property. The plaintiff was employed or authorized to assist in the business of that agency by finding a purchaser and reporting the fact for the consideration of the defendant. The service so rendered grew out of and was connected with the business of the agency, and the action to recover compensation therefor was properly brought in Wood-bury County.”
See, also, Milligan v. Davis, 49 Iowa 126; Ockerson v. Burnham & Co., 63 Iowa 570; Mitchell v. Lang & Co. (Iowa), 112 N. W. 87, cited in the Gilbert case. In the Ockerson case, it was held that an action for compensation alleged to be due the agent comes within the statute. There, as here, the plaintiff was the agent, who himself maintained the office for the defendants in the county of the plaintiff’s residence and agency. The breach of the contract there was that defendants discharged plaintiff from their employment without sufficient cause. See, also, Bradshaw v. Des Mornes Ins. Co., 154 Iowa 101, 109. In the Mitchell case, defendant had an agent in Dallas County, engaged in promoting the sale of. horses, and the plaintiff was employed to assist the agent in finding purchasers; and it was decided that the case was properly brought there, although the defendant was a resident of another county. We think the instant case is as strong as, if indeed not stronger, as to the agency, than in the Gilbert case. Appellee also cites on this point Lake v. Western Silo Co., 177 Iowa 735, which cites the Gilbert case and other eases where it was held not error to deny a motion for change of venue. See, also, Kabrick v. Case T. M. Co., 180
While this is true, it was said in the Locke ease that there must be an office or agency, but no fixed rule is given for ascertaining what constitutes an office or agency. It is said that this must necessarily be determined from the facts in each case. It was also said in that case that there must be an office and agency, and an agent or clerk employed therein, under Section 2613. This was for the pxxrpose of service of notice. The facts to show what constitutes an office or agency would be similar under both sections. As bearing ixpon this qxxestion, see, also, Murphy v. Albany Pecan Dev. Co., 169 Iowa 542. In New Hampshire F. Ins. Co. v. Utterbach, 184 Iowa 661, 663, it was held that the same rule applied to resident as well' as to nonresidexxt insurance compaxiies, in so far as it involves transfer to the proper county. In State v. District Court, 191 Iowa 244, it was held that, under the statutes, a domestic corporation of the class there involved might be sued in the county where its principal place of business is fixed -by its articles of incorporation, or in a county where it maintains an office or agency, etc.
It is contended by appellants that the agency, if any, of plaintiff had terminated a year before this action was broixght. At one point in the cross-examination of plaintiff on the trial on the merits, plaintiff did say that he had nothing to do with the farm after Jtxly, 1918, except showing it for sale. At that point, he was being interrogated in regard to a lease. It does appear, without substantial dispute, that, for some time prior and up. to August, 1919, plaintiff had advertised the property for sale in different newspapers, was making efforts to sell it, and showing the property, and that in August he found the
It is further contended by appellants that plaintiff had no personal dealings with the defendant Mary H. Delfs. Such is the record. The argument in reference to this is that the husband liad no authority to sell the property, or to employ plaintiff to do so. As said, the evidence is not very clear as to who had the legal title. The evidence preponderates that the defendants owned it together. Indeed, the only evidence we find in the record on that subject is the evidence offered by plaintiff, by offering the cross-petition filed by defendants, which recites that defendants own it. However this may be, so far as the record shows, the husband for several years had the entire management and control of the property, presumably with the assent of the wife. The marital relation alone raises no presumption of agency between husband and wife, but the existence of the relation is a circumstance, with others, tending to show agency; and it has been held that slight evidence of agency is sufficient. Furman v. Chicago, R. I. & P. R. Co., 62 Iowa 395; Helwig v. Fogelsong, 166 Iowa 715, 727; 21 Cyc. 1418 and 1663. We think the evidence is sufficient to show that the husband was the agent of his wife, in so far as the renting and management of the farm were concerned, and that both had an agency in Clarke County.
“We are enclosing herewith the Delfs — Downs contract, together with check sent in your letter of August 4. Mr. Delfs claims he can only sell subject to a lease which you failed to include in this contract. We are writing you at the request of Mr. Delfs.”
There is no objection made to the fact that the tender of the $1,000 was by check, rather than cash. The only objection Mr. Delfs made to the contract was that it was not subject to the lease on the land. It appears that, a few days prior thereto, defendant M. H. Delfs wrote plaintiff that, if a buyer wanted possession Mar’ch 1, 1920, he, defendant, would have to buy the renter off, or make some other arrangements with him. As stated, this matter was discussed in the telephone conversation between said defendant and Downs, and with plaintiff; and it is undisputed that it was then agreed that Downs should send his cheek. The objection to the contract was on account of matters of which defendants do not now complain. Under such circumstances, • we think appellants may npt now complain of this matter, and that the check was a good tender. Shay v. Callanan, 124 Iowa 370, 374; 38 Cyc. 146, 147. The circumstances indicate that defendants would not have executed the contract or accepted the $1,000, had money, instead of a check, been tendered. Sherwood v. Greater M. V. Coal Co., 193 Iowa 365. The check was made payable to the order of M. F. and Mary H. Delfs. It is now objected that there is a mistake in the initial of the defendant M. H. No such objection was made by either of defendants when the check was returned, or thereafter. It is clearly a mistake. The original notice is addressed to M. F. and Mary Delfs, but served on the proper parties. Some of the letters from plaintiff were addressed to Mr. Delfs as M. F., but they were answered by the defendant M. H.
The judgment is affirmed as to the defendant M. H. Delfs, and reversed and remanded as to defendant Mary H. — Affirmed m part; reversed in pa/rt.
