64 Neb. 623 | Neb. | 1902
This action was brought in the district court of York county by Jasper Huffman, against William Ellis., Plaintiff, in his petition, set up two causes of action. As a first cause of action, plaintiff alleged that the defendant authorized him to sell his farm in. York county for $1,000, and appointed him agent to make such sale, agreeing to pay therefor a commission of two per cent., this agreement being evidenced by a written memorandum dated August 9, 1890, and signed by defendant; that plaintiff did procure a purchaser at the price and upon the terms stated: and that defendant refused to complete the sale. As a second cause of action, it was alleged that defendant thereafter authorized and empowered plaintiff to sell the farm for $4,500, for which he agreed to pay him a commission ol two per cent.; that he found a purchaser willing and able to purchase the land at the price named; and that defendant again refused to sell. To (his peiii'.on defendant fthed
It is urged that there was error in the proceedings of the trial court in the admission of evidence and in the giving of instructions Nos. 1 and 3 given at the request of defendant in error. These objections will be considered in their order.
Plaintiff in error contends that, inasmuch as a memorandum in writing was signed by defendant in error, this constituted a contract between the parties, and that evidence admitted by the trial court regarding conversations had between the parties tending to show that there was an agreement and understanding that, if the sale was made at $4,000, it should be made soon after the plaintiff in error was authorized to sell the land, was evidence tending to vary and contradict the terms of a written document,, and was therefore inadmissible, This objection is not well
It is next contended that the court erred in giving instruction No. 1 at the request of defendant in error, which is as follows: “The jury are instructed that if an agent for the sale of real estate contracts to sell the same upon other or different terms than those which he is authorized by his principal to make, the principal would not be bound by such contract so as to make him liable to the agent for the commission in making such sale.” It is urged that this instruction does not respond to the issues raised by the pleadings, and that, under the evidence, the instruction ought not to have been given. It is contended that to sustain the instruction in the language given, the answer must have pleaded that plaintiff in error procured a purchaser upon other and different terms than those authorized by his contract. We can not assent to this contention, Plaintiff in error, in order to recover, must have pleaded and proved that he was appointed agent, and that he procured a purchaser ready and willing to consummate the purchase upon the terms authorized by his principal. These allegations were contained in his petition, and were denied by; the answer. This clearly presents the issue covered by the instruction. The testimony showed that in March, 1892, defendant in error, after negotiating a new loan for $2,500, notified plaintiff in error that he would not sell the farm, after going to the great expense of negotiating a new loan, for less than $2,000 above the $2,500 mortgage. The testimony further shows that in the fall of 1892, plaintiff in error procured a purchaser who
Instruction No. 3, regarding which complaint is made, is as follows: “The jury are instructed that when the owner of property employs another as agent to sell same without agreeing upon any time for which the agency is to continue, either party may determine the agency at any time by giving notice of his intention so to do, and if you find in this case that the defendant did so notify the plaintiff not to sell the property in question before the plaintiff entered upon negotiations with the alleged purchaser Hoyt, then you should find for-the defendant upon the second cause of action.” The objection made to this instruction is the same as that made to instruction No. 1; that is, that the instruction was not properly given in view of the fact- that the ansAver fthed by defendant in
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.