22 Neb. 174 | Neb. | 1887
This action was’begun in the county court of Lancaster county, wherein, on March 20, 1886, judgment was rendered in favor of Loomis for $87.50 and costs of suit.
The cause was appealed by Gregg to the district court of Lancaster county.
For cause of action the plaintiff below alleges in his petition that he was, during all the transactions hereinafter set forth, a real estate broker engaged in selling real estate upon a commission. That about January 1st, 1886, defendant Gregg employed plaintiff Loomis to solicit and find a purchaser for lot 6 in block 125, Lincoln, at the sum of $2,500, and therefor promised to pay plaintiff a usual and reasonable fee and reward.
' This plaintiff entered upon said employment and solicited one Smith to purchase said property, and exhibited said property to said Smith, and brought said Smith and said Gregg' into negotiation, and such negotiation was finally, on or about the 1st day of March, a.d. 1886, consummated in the sale and conveyance of said premises to said Smith, whereby said Gregg became indebted to plaintiff Loomis in the sum of $87.50, the reasonable and usual rate of commission.
In November, 1886, the cause was tried in the district, court of Lancaster county, a jury being waived, and the court thereupon found for defendant in error and rendered judgment against plaintiff in error for forty dollars and costs of suit. The plaintiff in .error thereupon filed a motion for new trial, assigning as causes therefor:
1st. Error in the amount of the recovery, being ton large a sum. 2d. That the decision is not sustained by sufficient evidence. 3d. That the decision is contrary to law. 4th. That the decision is erroneous in not being in favor of defendants. 5th. That the decision is erroneous in finding any sum due the plaintiff. • The motion was overruled, to which plaintiff in error duly excepted. Defendant in error also filed his motion for a new trial on the ground of error in the assessment of the recovery in that the amount recovered was too small, for that upon the evidence he was entitled to recover $87.50 and interest from the 9th day of March, 1886, and error of law duly excepted to at the time occurring at the trial of the cause. This motion was overruled, to which he duly excepted.
On the trial of the cause the plaintiff below testified: “ My business is and was, during February and March, 1886, that of real estate, renting houses and selling real estate on commission. Gregg employed me in the first place. I sold Gregg lots five and six in the block 125, I believe for $2,300. I then told them the lots were worth $4,000, and that I would sell them for him at that price if he would let me do so. He said if I could get $4,500' I might sell them; he wanted that net. I said I did not sell lots that way; if he would make me a price and stand
On cross-examination ho testified : “ I was a witness ins
“On that trial I did not swear that I never had any conversation with .either of the Smith boys about the sale of one lot, after the conversation I have spoken of, at the corner of O and 11th streets. I insisted all the time on the two .lots all the time, till I asked Mr. Gregg if he would divide; then when he said he would divide, I went to the boys and talked one lot for $2,600.”
F. E. Gregg testified: “I am the defendant; Mr. Beecher was the owner of lots five and six, block 125, and McMurtry came to our office to sell them, and Mr. Keyser and myself purchased them jointly some time in December, 1885. Shortly after we bought the lots Mr. Loomis came to us and said: . Don’t you want to sell those lots ? Our reply was, that we had bought and our intention was to build on them. We didn’t know whether we wanted to sell them or not.. He said, I can, I believe, sell them for $4,500, possibly $4,600. I .had never been in Loomis’ office, and when he again came, I said: If you bring us (I believe it was $4,600 net) to us without expense, I don’t think that I said we would make a warranty deed; any way, we would make a deed. He kept at it some time; finally I bought out Mr. Keyser’s interest in the corner lot, and sold him my interest in the other; that passed to me the title of lot six, the corner one. Then my recollection of Mr. Loomis speaking about a single lot after-wards, was the time he spoke on the córner of Eleventh
“ When Loomis first came to speak about the lots, he remarked something of the kind, that I must not interfere with his sale. I don’t think I had a conversation with Loomis about one lot, except the conversation at the corner of Eleventh and O streets, when he called me.
“ I was present at the trial of this cause in the county court. Mr. Loomis said then that at the corner of O and Eleventh streets, he called me, and asked me if I would not sell the lots single, and what price; that I told him $2,700, which he said was too much, and I said I must have $2,600 net to me; that I made that provision, net to me. Then, that he said he could not do work without commission, and then went back into his office. My recollection is that he said that. Then he did nothing more in reference to selling that lot; had no more' conversation with A. B. Smith.
“ Mr. Loomis, at another time, possibly a week or few days after this sale, called to me and said, you have sold that corner lot; I said yes. He said if it was not sold he could sell the two together’, at such and such a price. I think he said J. R. Webster wanted them; that he would take them together at $5,000 or $5,500 ; would take them together. He said, could you not get them back from Smith? I said possibly I could; he said he would work with Mr. Webster. We could make the sale of the lots to one man this time. . Mr. Andrus has made a claim for his services in showing this lot. Mr. McMurtry testified as to some conversation he had with me about these lots and about Loomis telling me to hold on or not do something with his customer at that time. I must say Mr. McMurtry is mistaken about that, I had no —” (question by McMurtry.) “Did you say that you did not come into
“ My recollection is that Mr! Smith spoke to me about the single lot before Mr. Loomis said anything about it, and Mr. Loomis did ask about the single lot down there on the corner. After that I sold it to Smith. ' It was more than a short time afterwards. I think we, Mr. Keyser and I, may have stopped in at McMurtry’s office on our way to dinner, but it was about the two lots. I remember no such conversation as McMurtry states. At that time Keyser and I had not separated our interests. Possibly a negotiation was in progress with the Smith boys about the purchase of the two lots. I don’t recollect saying I would sell them myself if Loomis did not close it up. It is among the possibilities I may have said so, but if you refer to the single lot, I will emphatically say I said no such thing. I don’t remember suggesting to Smith I had been to see about it. I did not mention it. I will say, at that time I did not speak of $2,600 as the price for lot 6, block 125, to Smith.”
There is considerable testimony tending to corroborate that of both the plaintiff and defendant. It will thus be seen that there is a conflict in the testimony as to whether there was a contract between the plaintiff and defendant, and if so, its terms. All the testimony, however, tends to
The proof as to the exact value of such services is not very definite, while the evidence is, the commission on the sum of $2,500 would have been $87.50. The court, therefore, seems to have apportioned the value of the services at a ratable proportion of the amount which the plaintiff' below would have been entitled to recover had he completed the sale. This, while not admissible under the pleadings, was not objected to, and the objection therefore is waived, as error must affirmatively appear in order to justify the reversal of a judgment. The errors shown in the record are not sufficient for^that purpose, and the judgment of the district cóurt is .therefore affirmed.
Judgment affirmed.