124 Ark. 512 | Ark. | 1916
This is an action instituted by appellee against appellant to recover commissions alleged to have been earned in the -sale of certain real estate. Appellant resides at Mulberry, Crawford County, Arkansas, and owned a tract of 276 acres of land in Oklahoma, only a short distance from Fort Smith. Appellee is in the real estate business at Fort Smith. The lands were listed with appellee, and, according to the testimony, he made considerable efforts toward procuring a purchaser. He showed the land to numerous prospective buyers and finally 'showed it to W. L. Brett, who subsequently purchased the land directly from appellant.
Appellee alleged in his complaint that he was authorized by appellant to sell the lands for $13,000, and that he was to receive a commission of 5 per cent, of the purchase price. Appellant in his answer denies those allegations, but alleges on the contrary that he authorized appellee to sell the land for $50 per acre, or $13,800, and agreed to pay him the sum of $500 as commission if he made the sale at that price, hut that appellee failed to make the sale and that he (appellant) sold the land himself to Brett. The case was tried before a jury and a verdict was rendered in appellee’s favor for the recovery of the sum of $500.
Appellee testified that after appellant listed the land with him for sale at the price of $13,000, he showed the property to numerous parties, and that one day appellant approached him and urged him to make a sale and intimated that he might take less than the price he had already named; that shortly afterward he began negotiations with Brett and early one morning took Brett out to see the place, and that on the return he gave Brett, at the latter’s request, the name and address of the owner. It seems that on the afternoon of that same day, Brett, without appellee’s knowledge, drove over to Mulberry to see appellant and they verbally closed the trade at the price of $12,000, which was consummated two or three days later. The evidence does not show that appellant knew at the time he made the oral agreement with Brett that appellee had taken Brett out to see the land or had otherwise negotiated with him.
Appellee testified that the next day a man named Steward, who was appellant’s tenant on the place, called at the hotel and left word for him not to take any further steps toward selling the land, and that he thereupon called appellant over the telephone and had a conversation with him about the matter. He undertakes to detail that conversation, . and it appears that appellant made evasive statements and was endeavoring to conceal the fact that he was about to close the trade with Brett. Appellee notified him, however, that he had taken Brett out to see the lands and that he would claim .a commission. Brett testified that appellee did not give him the name of the owner, but that he ascertained the name of the owner from Steward, the tenant on the place, when he was looking at it. He also testified that on the return trip to Fort Smith, after he and appellee had been out to look at the place, he tqld appellee that he would not be willing to give $13,000 for the place, and that appellee made the following statement to him: “If you will let me work it for you, I might be able to buy it for a little less.”
The question of fraud on the part of appellee was, however, submitted in two instructions, one of which (No. 6) was given in the form requested by appellant, and the other (No. 2) was given with a modification.
Instruction No. '2, as requested by appellant, reads as follows: “The law requires that plaintiff as the agent or broker of the defendant shall act in absolute good faith toward the defendant, and if you believe from the evidence that plaintiff stated to the purchaser, Mr. Brett, that the lands could be bought for a less price than defendant had agreed with plaintiff to take; that if he, plaintiff, was given time he could procure the lands at a less price from defendant for Mr. Brett, in that event plaintiff’s actions were, in law, fraudulent toward defendant, and your verdict must be for the defendant.”
The 'court modified it by striking out the words “were in law fraudulent toward defendant, and your verdict must be for the defendant, ” and by adding the words “may be' considered by you in determining whether he acted in good faith.” The modification was correct, because, as we have already said, it was improper to tell the jury that if appellee made the statement to Brett attributed to him it would constitute fraud which would prevent recovery. It was only a circumstance to be considered by the jury in determining whether or not appellee had acted in good faith.
Appellant asked the court to instruct the jury to the effect that unless appellee produced a purchaser “ready, willing and able” to buy the lands on the terms and at the price which appellant had authorized appellee to accept, there could be no recovery; but the court modified the instruction so as to permit a recovery on the price and terms which appellant fixed in his direct trade with Brett. The evidence showed that the reduction of the price was voluntarily made by appellant. In other words, he sold to a purchaser procured by appellee, and at a price which was satisfactory to himself, and therefore he is liable for the commission. Appellee is>, under those circumstances, deemed in law to have been the procuring cause and is entitled to the commission. Stiewel v. Lally, supra.
We are of the opinion that the case went to the jury upon conflicting evidence and upon correct instructions, and that the issues have been 'settled by the verdict of the jury. We find no prejudicial error in the record, and the judgment is therefore affirmed. ‘