114 N.W. 369 | N.D. | 1907
The order appealed from in this case was clearly correct, and must be affirmed. The appellants, who are in the real estate business in the city of Bismarck, seek to recover from respondent the sum of $540 and interest, which sum they claim to be due them as commissions for finding a purchaser for certain real property owned by respondent, near said city, pursuant to the terms of a contract claimed to exist between them. Defendant by his answer put in issue the existence of any such contract. The case was tried to a jury, and at the close of plaintiffs’ evidence the trial court, on motion of defendant’s counsel, directed a verdict in defendant’s favor, and judgment was thereafter rendered upon such verdict. Subsequently a motion for a new trial was made and denied; and, from the order denying such motion, this appeal was taken.
The assignments of error all relate to the sufficiency of the evi-. dence to establish the contract upon which plaintiffs rely to recover the alleged commissions. The defendant resides at Potsdam, N. Y., and the sole proof offered to establish the contract, consisted of the following correspondence between the parties: “Bismarck, N. D., Sept. 38, 1905. Mr. Jesse Reynolds, Potsdam, N. Y. — Dear Sir: Do you own the W. of the S. E. % of section 8-139-80 in Burleigh county, No. Dakota; if so, what is your lowest price and best terms on same. There are a few buyers coming in here this fall, and we might be able to sell it for you if the price and terms are right. -An early reply will grealy oblige, we are, Very respectfully, [Signed] Harris Bros.” “No. 8 Elm St. Potsdam, Oct.’ llth-05. Harris Bros., Agents — Sirs: Yours of the 38 ult at hand. I am the owner of 97 acres of land near Bismarck Once owned by Israel P. Hunt. The land cost me $1,600 and over. Would sell for $10.00 per acre part down and time for balance.The land is rented to Hon. Henry L. Reade for one year, which expires in Dec. Yours, etc., J. Reynolds.” After the receipt of defendant’s letter of October 11th, plaintiffs, evidently assuming that they were authorized to procure a purchaser for the land and to receive and retain as commissions all sums in excess of
In Krum v, Chamberlain, 57 Neb. 220, 77 N. W. 665, it was said “That a binding contract may result from an offer and acceptance, it is essential that ¡the minds of' the parties meet at every point, and that nothing be left open for future arrangements. It has been said ‘that an acceptance, to be good, must in every respect meet and correspond with the offer, neither falling within or going beyond the terms proposed.’ Knowlton’s Anson, Cont. 22.” See, also, Wristen v. Bowles, 82 Cal. 84, 22 Pac. 1136; Niles v. Hancock, 140 Cal. 157, 73 Pac. 840; Tilley v. Co. of Cook, 103 U. S. 155, 26 L. Ed. 374. Balkema v. Searle, 116 Iowa, 374, 89 N. W. 1087, cited by appellant’s counsel, was an action by an alleged vendee to compel specific performance of a contract to purchase land, entered into with an alleged agent of the owner, and it was merely held that the alleged agent had no authority to make the contract, and hence, the same was not binding upon defendant. It is true that in the opinion the court said that Snyders (the alleged agent) “was defendant’s agent to some extent and for some purpose relating to the sale of this land,” etc. The decision, however, was placed upon the ground that the alleged agent exceeded his authority, hence is of no weight as an authority upon the question involved in the case at bar. After the receipt of defendant’s letter of October 11th, and after plaintiffs had procured a proposition from Kriedler to purchase the land as before stated, plaintiffs wrote a letter to defendant as follows: “Bismarck, N. D., Oct. 21, 1905. Mr. J. Reynolds, Potsdam, N. Y. — Dear Sir: Your favor of the- 31, inst., at hand, quoting us your price of $10.00, per acre net to you on the west half and the west 264 feet of the east half of the south east quarter of section 8-139-80. We have sold the above described land as per your letter of the 11, inst.,' at $10.00, net to you on the following terms: $300 cash, and notes and mortgages properly executed on the above described land for $660, payable as follows: $200.00, on May 1, 1906, $200.00 on May 1, 1907, $260.00, on May 1, 1908; notes payable on or before with interest at 6 per cent, payable annually. We have deposited with us $100.00, $200.00 more will be paid by the time your deed reaches us, and will be paid to the bank by us as soon as your deed arrives. We have left the name of purchaser and consideration blank for our convenience
Plaintiffs, having wholly failed to establish a cause of action as alleged, the order appealed from was correct, and is accordingly affirmed, with costs to respondent.