138 N.W. 374 | S.D. | 1912
This is an action by the plaintiff to recover of the defendant'a'commission on the sale of a quarter section of land. The action was tried to a jury, and the verdict and judgment were in favor of the plaintiff, from which judgment and order denying a new trial the defendant has appealed.
It is alleged in the complaint, in substance, that the defendant is the owner of a quarter section of land, and that the plaintiff is a real estate broker; that on or about the 12th day of April, 1910, the plaintiff entered into an agreement wherein, and by the terms of which, the defendant listed said described premises with the plaintiff for sale at the agreed price of $50 per acre net to the defendant, and that the plaintiff was to have as compensation all that the same might be sold for over and above $50 per acre; that it was agreed that the price fixed should be $53 per acre, of which the defendant was to have $50 per acre and the plaintiff $5 per acre as commission; that under and by virtue of said agreement the plaintiff did produce a purchaser, C. M. Seigfried, who subsé-quently purchased the premises at $55 per acre, making a total of $8,800, of which the plaintiff claims to be entitled to. $800, and for which he demanded judgment.
The defendant in his answer admitted that the plaintiff was a real estate broker, and that the defendant was the owner of the premises described, and denied the other allegations of the plaintiff’s complaint.
It is disclosed by the undisputed evidence that the plaintiff, on or about April 12, 1910, called at the residence of the defendant and inquired if his farm was for sale; that the defendant answered that it was, and that he wanted $50 per acre for the same; that he listed the property with the plaintiff and gave him at the same time a description of the buildings and other improvements on the
It -is contended by the appellant that, as the plaintiff did not actual^ bring the purchaser -and* the defendant together, and took no part in the preparation and drawing up' of the contract between Seigfried and the -defendant, which was, in fact, drawn up by some -party in a bank at Mitchell, he was not entitled to his commission. But this contention is clearly too restricted a view of the rights of a broker to his commission in this class of cases. It seems to be a general rule that, where an agreement is made be
In Langford v. Issenhuth, 28 S. D. 451, 134 N. W. 889; this court held, as appears by the headnote: “A broker is a procuring cause of sale if he is the original discoverer of the purchaser, and has started negotiations by which a sale is finally consummated.” And this court, in it sopinion, quotes with approval the following from the case of Smith v. McGovern, 65 N. Y. 574, defining the words “procuring cause”: “It means the original discovery of a purchaser by the plaintiff, and the starting of a negotiation by the plaintiff, together with the final closing by or in behalf of the defendant with the purchaser through the efforts of the plaintiff.”
In Minder & Jorgenson Land Co. v. Brustuen, 26 S. D. 38, 127 N. W. 546, this court held, as appears by the headnote: “A real estate agent, who produces a purchaser with whom his principal enters into a contract, is entitled to his commission, though, without fault of his principal, the transaction is not consummated.”
In Grieb v. Koeffler, 127 Wis. 314, 106 N. W. 113, it was held by the learned Supreme Court of Wisconsin, as appears by the headnote: “A real estate broker is entitled to his commissions for finding a purchaser if, through his efforts, a purchaser is found within the time limited, or, in the absence of a limitation, within a reasonable time; and it is not necessary that he should bring the purchaser to the owner.”
In Reade v. Haak, 147 Mich. 42, 110 N. W. 130, the Supreme Court of Michigan held, as appears by the headnote: “Where brokers were to receive commissions for procuring a purchaser at a price satisfactory to the principal, they were bound, as a condition of their right to demand commissions, to bring the buyer and seller to an agreement, but it was not necessary that they should conclude the sale in person; it being sufficient if their efforts were the procuring cause of the sale.” See Huntemer v. Arent, 16 S. D. 465, 93 N. W. 653; Scott v. Clark, 3 S. D. 486; 54 N. W. 538.
It -is clear from the evidence in the case at bar that the plaintiff found the purchaser for the defendant’s property, resulting in the contract of sale of the property by the defendant to the
The further contention of the appellant that the change made in the contract with Seigfried, that he was to have one-third of the corn crop, had the effect of relieving the defendant from any liability to the plaintiff under the contract made by him with the plaintiff is clearly untenable, as such a change in the contract by the defendant did not affect the right of the plaintiff to recover in the action, as this stipulation was made in the contract between the defendant and Seigfried under the rights remaining in an owner, and, so far as the record discloses was made without the knowledge or consent of the plaintiff. The contract entered into by the defendant with Seigfried, the purchaser who had been produced by the plaintiff, and substantially upon the terms agreed to between the defendant and the plaintiff, clearly entitled the plaintiff to his
It will thus be seen that Seigfriend binds himself “to purchase
It will be seen therefore, that the contract in the case at bar was clearly a mutual contract, enforceable by both parties, and not an option contract.
Finding no error in the record, the judgment of the court below and order denying á new trial are affirmed.