82 Mich. 208 | Mich. | 1890
The plaintiff sued the defendant in an action in assumpsit upon the common counts, and recovered judgment in the circuit court for the county of Wayne-The plantiff claimed that the defendant authorized him to sell 10 acres of lapd owned by defendant, situated on Woodward avenue, in the city of Detroit; that in pursuance of such authority the plaintiff procured W. K. Anderson, who accepted and stood ready to take the 10 acres of land at 817,000, the price agreed upon between plaint
The defendant contended and testified that he never employed plaintiff to sell the land for him; that Hannan first met him on the street, and asked him if he would sell some of his land on Woodward avenue. Fisher replied that he would if he could get his price for it. Hannan said, “I think I can sell a piece of it, — ten acres.” About two weeks afterwards Hannan said to him, “I think I have got a customer for that.” Mr. Fisher then told him that before Hannan sold any land for him it would be well to understand exactly what was going to be sold, and said to him that the piece they had spoken about, and designated as the south half of lot 5, only contained nine acres and a fraction. In the first conversation he did not authorize Hannan to sell it.
At the second talk plaintiff said he did not think he could sell the 9 acres; the purchaser wanted 10 acres. They had other talks about it, plaintiff wanting defendant to sell the 10 acres, and Fisher refusing to sell more than the 9 acres and fraction. Plaintiff finally asked
In order for the plaintiff to maintain his case, it was not only necessary for him to establish that he was employed to sell the 10 acres at $17,000, but also that he procured a purchaser. He does not claim that he got any purchaser except Anderson, and we think that upon the testimony of Anderson a verdict should have been directed for the defendant. But the circuit judge instructed the jury that Anderson stood ready to take the 10 acres for $17,000, and, if they found that Fisher employed Hannan to sell the 10 acres at that price, the plaintiff was entitled to recover his commission.
It seems that Anderson owned land adjoining that of defendant, and knew that defendant contemplated platting his land, and intended to run a street between 30 acres that he owned there, which would take half the highway off from the 10 acres to be sold. It also appeared that the street had already been partially laid out by defendant. Anderson testified that plaintiff came to him, and offered to sell him the south half of lot 5, and asked him $17,000 for it.
“ I told Mr. Hannan that I thought I would accept the property at $17,000, if he could get it. I told him to get me an option on the property.”
Mr. Hannan went away, and came back and said that Mr. Fisher had now concluded that he would only sell 150 feet front, Avhich would be about 9 acres.
“I told him he had better get an option from Mr.
The option was taken, at Anderson’s request, in the name of Case, which option he never accepted. On cross-examination, he testified that he never met Mr. Fisher, or came to any terms with him in reference to the property.
“ Q. You never accepted any proposition, nor made any proposition that was accepted on one side or the other, finally?
“A. No.
“ Q. And this option in writing was made at your suggestion ?
“A. Yes, sir; I think so.
“ Q. And was not that option asked by you because you wanted to know definitely what the proposition was, because there was some disagreement as to what you were getting, and what you were to pay for it?
“A. Well, I wanted that to give me time to consider it. I did not know but what I might accept it after all.
“ Q. And that was the first proposition that you ever got from Mr. Fisher?
“A. The first one that I ever saw any writing about.
" Q. Prior to that time, as I understand you, nothing definite was completed?
“A. Nothing was completed.”
He further testified, in answer to questions put bv •counsel for plaintiff, that he intended to take the 10 acres if he could get it for $17,000. The same counsel also asked him on redirect examination:
“ Q. Is it not a fact that you told Mr. Hannan that if he could get you that 10 acres for $17,000 you would take it?
“A. I don’t know that I can answer that question exactly categorically, but that is my recollection that I told him that I would take the property at $17,000,-10 acres of land.”
Counsel for defendant then asked him:
“ A. Yes, sir.
“ Q. And that thereupon you asked him to get the proposition in writing?
“ A. Yes, sir; and I did so.”
Anderson also further testified:
“ Q. Why did you ask for this option, if you understood that that proposition had been made to you and had been accepted by you?
“A. 1 wanted to get it in writing so that I would know exactly what I would get.
“ Q. Then, didn’t you think that there was some uncertainty as to what the proposition was?
“A. There was this question: The one reason why I wanted that option in writing was this, I wanted to know whether Mr. Fisher would insist on that right of way being put down on the south side of his property, between the two ten acres, — between his two ten acres, that is, between the part that he retained and the part that he sold.
“ Q. You knew, then, that in the proposition which Mr. Hannan submitted to you Mr. Fisher contemplated a highway there, and the proposition was based upon such an idea?
“ A. I inferred that he did, but I did not want the highway there.
“ Q. And that is why, because that you inferred that that was the basis of his proposition, that you wanted it in writing?
“ A. I wanted it in writing so that if he insisted on that highway being put where he is now contemplating—
“ Q. And where he contemplated then?
“ A. The property would be no use to me.
“ Q. I suppose that you inferred that Mr. Fisher would insist upon the highway going there, simply on account of the size and position of his own property?
“ A. Yes, sir.”
It is plain to me from the whole of Anderson’s testimony that he never agreed to purchase the ten acres at
The judgment must be reversed, and a new trial granted, with costs of both courts to defendant.