117 Mich. 267 | Mich. | 1898
The defendants were the owners of a large tract of pine land in "Wisconsin, which they sold to one Don J. Leathers in March, 1892. One Henry Gamble claimed to have a contract with the defendants for the sale of these lands for 2-J- per cent, commission, and that he procured the purchaser. He assigned his claim to the plaintiff. Upon the merits of the controversy, plaintiff stands in the same position as though Mr. Gamble were the plaintiff. Mr. Gamble had advanced $12,932 towards the purchase of this land, and by written agreement dated November 3, 1888, was to receive from the sale that amount, with interest, and one-third of all the net profits. No profits were made. The first conversation in regard to a commission was had in May or June, 1891, between Mr. Gamble and Mr. Lindsay. This conversation is unimportant, as Mr. Lindsay informed Mr. Gamble that the entire matter was in the hands of Mr. Paine. Mr. Gamble thereupon went to Mr. Paine’s office. Mr. Gamble testified that Mr. Paine agreed to allow him a commission of 2-¿- per cent, on whatever amount was received, and promised to give him a memorandum in writing to that effect, but could not give it to him then on account of negotiations with another party, from whom he had not heard. Mr. Paine testified that the contract was a commission of 2{- per cent, upon a sale for $210,000. Mr. Gamble states the conversation as follows:
“I asked Mr. Paine what price he asked for the timber. ‘Well,’ he says, ‘the asking price is $210,000, but, if you*269 find a purchaser, we will make the price all right;5 but the asking price must be $210,000, because, if he offered it lower, they would try to beat him down; they would try to get it for less.55
Mr. Paine testified that Mr. Gamble asked for an option, which he refused; that the price at which Gamble was authorized to make a sale was fixed at $210,000, with a commission of 2£ per cent.
The result, aside from the written evidence, depended entirely upon the testimony of three witnesses, — Gamble and Leathers for the plaintiff, and Mr. Paine for the defendants. As to their verbal conversations in regard to the contract, their testimony is in direct conflict, and, so far as the result depended upon them, the question was for the determination of the jury.
Certain written evidence is important. The first communication, after the above conversation, shown by the record, is a letter from Paine to Gamble, June 20, 1891, as follows:
“Dear Sir: I find I cannot give option just now; may be next week. If and when the men are ready to go in and estimate, let me know, and I will try and arrange for you.55
To this Gamble replied as follows:
“Dear Sir: Your letter received. You say you are not able to give an option until parties are ready to go on. The men are here now, and ready to go on, if they can get a 30-day refusal. If you will send me a refusal immediately, we will go at once, and look the land. Of course, I gave them to understand that I could get the refusal any time they were ready to go and look the same. They are parties who intend looking with a view to lumbering same next winter. If anything is done in the matter, it must be done at once.55
June 23d, Paine replied by telegraph as follows:
“Three applications for the pine. Name your parties. Price, $210,000. Will give 15 days, and extend then if trade on. If sold by you, 2£ per cent, commission to you.55
“Dear Sir: The party waiting to examine Ashland timber went, the day I received your telegram, to Toledo, and will return Sunday. If he is still desirous of examining timber, I will wire you Monday. I will try to sell it to him at $210,000, with the understanding you are to pay 2£ per cent, commission on whatever price it is sold for. This party’s land-looker is more liberal in estimating than any other man in the valley, and, if he should decide to examine the timber, the chances of a sale are good. ”
To this letter Paine made no reply. Gamble did not make the sale referred to in that letter, and did not disclose to defendants the name of the party. Nothing further appears to have been done until in September following, when negotiations were opened with Mr. Leathers by Gamble, resulting in a sale to him. Mr. Gamble and Mr. Leathers went to Detroit in October to see Mr. Paine. Meanwhile Mr. Leathers and the West Michigan Lumber Company each had put a man on the lands, and had them examined. Leathers at the same time gave the West Michigan Lumber Company a price of $200,000. In the interview at Detroit, Mr. Leathers offered Mr. Paine $173,000. Mr. Leathers put this offer in writing, Mr. Paine informing him that he could not accept that offer without authority from Mr. Lindsay, who was then away from home. Mr. Leathers went to Kentucky immediately. Mr. Paine communicated the offer to Lindsay, who authorized the sale, and acceptance was wired to Leathers. At that interview, Mr. Paine testified that he asked Mr. Gamble about his commission if they made a sale for less than $210,000, and that Gamble agreed to take $2,000. Gamble testified that his commission of $2,000 was conditional upon the sale being made for $173,000, but, if the sale was for more than that sum, then he was to receive 2-J- per cent, on the total amount.
Subsequently, when the parties met to carry out the agreement and convey the lands, it became known for the first time to Mr. Paine that the West Michigan Lumber
“If Mr. Gamble gave Mr. Leathers such information, or made to him such statements, as to cause Mr. Leathers to become satisfied that the defendants would not insist upon the price asked, and that he could press them into accepting a substantially less price for the pine, Mr. Gamble was guilty of bad faith towards the defendants, and his assignee, the plaintiff, Mr. Harvey, would not be entitled to recover any compensation for what he may have done in connection with the deal with Mr. Leathers.”
Judgment affirmed.