90 Kan. 602 | Kan. | 1913
The opinion of the court was delivered by
Hutton & Fisher sued John Stewart in the city court of Wichita for a real-estate commission. The case was taken to the district court on appeal. The only pleading filed was the plaintiffs’ bill of particulars, which set out their claim in detail. When the case was called for trial a preliminary statement was made in behalf of each party. The court rendered judgment for the plaintiffs upon their pleading and the opening statements. The defendant appeals.
The uncontroverted facts show that through the agency of the plaintiffs the defendant and one P. J. Harmon, on June 28, 1911, entered into a written contract for the exchange of properties, which contained a provision that each was to pay the plaintiffs one-half of a stated amount, which is admitted to have been the usual commission. The reason assigned by the defendant for refusing to pay the plaintiffs’ claim is that Harmon failed to carry out his agreement, causing* the trade to fall through; that Harmon was to have furnished an abstract of title in ten days, and a deed by July 10, but did neither; that Stewart waited until July 17, and then, becoming convinced that Harmon could not or would not perform his part, called for the return of his own deed, which had been deposited with the plaintiffs.
“When the broker produces a purchaser who is ready and willing to enter into a contract, it is for the principal to decide whether the person presented is acceptable, and the broker’s position [commission?] depends upon such acceptance; but if the principal does accept him, either upon the original or modified terms, and a valid contract is entered into, he becomes a purchaser within the meaning of the contract of the broker, and the duties of the latter are at an end, and the commissions are earned as soon as an enforceable contract is executed.” (Note, 44 L. R. A. 593, 616.)
The appellant cites two Kansas cases as holding to the contrary—Stewart v. Fowler, 37 Kan. 677, 15 Pac. 918, and Betz v. Land Co., 46 Kan. 45, 26 Pac. 456. The former turned upon the special terms of the contract with the agent. In the latter the solvency of the buyer was treated as an issue after a contract for a sale had been executed, but the exact question here presented was not discussed. The distinction between an enforceable executory contract for the sale of land and a contract by which a sale is actually made, the title passing and the seller retaining a lien for deferred payments, is not sufficient to affect the broker’s right to a commission in such a case as the present.
The judgment seems clearly warranted upon the
It is contended by the appellant that the final rights of the parties ought not to have been determined upon the motion,for judgment upon the pleading and the opening statements, and Glenn v. Railway Co., 87 Kan. 391, 124 Pac. 420, is cited in support of the contention. Here no pleading on the part of the defendant was required. When the statement of his attorney was completed the whole scope of the controversy was apparent. It was clear that there was no material dispute over the facts, and that the case turned upon the effect of the written contract. No good purpose could have been served by taking testimony, and the court was justified in bringing the proceedings to a close.
The judgment is affirmed.