31 Minn. 486 | Minn. | 1884
Defendant, owning a building in which he and his wife resided, and a lease of the ground upon which the same was situate, employed plaintiffs, by written memoranda, to procure for him a purchaser thereof for the price of $25,000, as follows: $5,000 cash; $5,000 on or before 5 years; and $15,000 on or before 10 years, with semi-annual interest at 7 per cent, per annum on the deferred payments. No other terms, conditions, or particulars of sale were specified in the memoranda. Plaintiffs, alleging that they procured a purchaser on the terms above mentioned, bring this action to recover their commissions.
The obvious rule is that to entitle one to commissions for procuring a purchaser of property on specified terms, he must produce a person ready and willing to purchase on those terms. Wylie v. Marine Nat. Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378. In proof of their claim that they had procured a purchaser (Benton) upon the terms of the memoranda, plaintiffs put in evidence a written instrument (Exhibit D) purporting to be signed by them as agents for defendant and lús luife, and by the alleged purchaser, and further purporting to sell to said purchaser the building and lease upon the terms mentioned in the memoranda, with other
This action is brought, as before stated, to recover commissions for procuring a purchaser of defendant’s property. Plaintiffs’ employment by defendant was to procure a purchaser upon the terms mentioned in the memoranda. The written instrument, from which we have quoted at length above, shows that the purchaser was procured upon those terms, and upon additional terms not mentioned in the memoranda. Now, the trial court (defendant excepting) instructed the jury, and repeatedly, that the written instrument (Exhibit D) was “in substance a compliance” with the terms of the memoranda. If this was wrong, it was an error which will entitle defendant to a new trial, notwithstanding the fact urged by plaintiffs that the ease settled does not purport to contain all the evidence. The “case” stands as a bill of exceptions.
In our opinion the instruction was erroneous. It cannot be said, as a matter of law, that some of the additional terms inserted in Exhibit D are not substantial additions to the terms specified in the memoranda. If this is so, Exhibit D is not “in substance a eompli
Again, by Exhibit D, “we” (that is defendant and wife) “agree to -convey,” etc., “conveyance to be made * * * only upon receipt ■ of” the cash and notes mentioned. This is a provision for the pay••ment of the money and the execution and delivery of the notes to defendant and his wife; not to defendant alone, as per the memoranda.
As to the evidence of ratification of Exhibit D by defendant, it is to be observed, first, that the instruction which we deem erroneous was given without reference to any proof of ratification; and, second, that as the “case” does not purport to contain all the evidence, there may have been conclusive testimony against any ratification.
■Order reversed, and a new trial directed.