22 N.M. 615 | N.M. | 1917
OPINION OP THE COURT.
Appellee sued appellant for a commission for effecting the exchange of a 160-acre tract of land belonging to the appellant near Greenfield, N. M., for certain land in Texas. Appellee was a real estate broker engaged in business at Lake Arthur, N. M. The jury returned a verdict for appellee in the sum of $450. Motion for a new trial was filed and overruled, and judgment was entered upon the verdict, from which this appeal is prosecuted.
The original complaint consisted of two causes of action, stated separately; the first count being dismissed upon the trial. The theory of the second count was that appellee, at the request of appellant, had found him a purchaser for the lands traded, and that the money demanded was a reasonable compensation for the services. Appellant first argues that because appellee, at the time the property was first listed for sale, was a member of the firm of Holden & Jackson, which partnership was subsequently dissolved, that the contract of employment terminated. It may lie true that the original listing with' Holden & Jackson did terminate, but as appellee thereafter continued with the knowledge, consent, and approval of appellant to endeavor to find a purchaser for the land, and appellant accepted such services, the question of the original listing of the land for sale or trade with Holden & Jackson becomes immaterial. The second count of the complaint relied upon an implied contract for a reasonable commission established by usage and custom, and not upon aiw certain or definite contract to pay a commission. The record discloses that practically the only point seriously contested was as to whether plaintiff ivas the procuring cause of the trade, and upon this issue the case was tried.
The next point urged is that the court committed error in not sustaining appellant’s motion for a directed verdict at the close of plaintiff’s case in chief, and also a like motion renewed at the close of all the evidence. Disposition of this point requires a review of the evidence. Jackson by correspondence and other methods from time to time endeavored to secure a purchaser or some one willing to trade for appellant’s land. People came from time to time to look at appellant’s real estate but for divers reasons the deal was not consummated. Finally, appellee, by correspondence with a real estate agent in Canyon City, Tex., succeeded in interesting a man named Bowen in appellant’s farm. Bowen, at the suggestion of McClure, the Canyon City agent, came to Dexter, N. M., and looked'over the farm belonging to appellant. In Dexter they drew a contract by which on stated terms, it was agreed that the trade would be made. Appellant had never seen Bowen’s farm, and the contract provided that he shuold have the right to inspect Bowen’s premises and five days’ time within which to exercise the right to trade or reject the proposed trade. Jackson told appellant that, when he went to Canyon City, if he did not like the proposed trade, McClure would show him other farms and probably would be able to show him something that would be satisfactory. Appellee wired McClure that appellant was going to Canyon City, and also wrote him a letter in which he requested McClure in the event the proposed trade was not consummated, to show appellant other lands listed with him. Further at the time of the conversation relative to'the proposed trip to Canyon City appellee informed appellant that, in the event he traded with 'McClure for other lands, he would expect to receive the usual commission, to which appellant made no reply. Appellant went to Canyon City and called upon McClure. McClure showed him the lands owned by Bowen and, as these did not prove satisfactory to appellant, he exercised his option under the contract and refused to trade. McClure then took appellant to see various other tracts of land, with the result that a trade was fully consummated with a man by the name of Trigg for certain land in Texas. While there were other minor facts, it is upon the above facts that appellee was or was not entitled to a commission, and the determination of the question depends upon whether the above facts show that the efforts of the appellee were the procuring cause of the trade.
The sixth and seventh assignments of error complain of rulings as to the admission or rejection of certain evidence. The matters complained of, however, were immaterial matters, not affecting the substantial rights of either party, and require no further consideration.
“Courts ar'e not bound to give instructions which,, even if correct, are merely cumulative, and state in another form a 'proposition of law already given to the jury.”
No error was committed by the court in refusing to give defendant’s requested instruction No. 4, to the general effect that all previous negotiations were merged in the contract between Brower and Bowen, which gave Brower the right to examine the Bowen land and reject the contract within five days, .and that by reason of the Bowen contract the employment of Jackson terminated, because there was no evidence justifying such an instruction.
“This rule results in better justice, since the broker should properly be apprised that a question as1 to the reasonableness of the time taken is to be raised, in order that he may be prepared with evidence as to the activity of the market, and other proof bearing upon the question, as related to the particular case. There being no defense of the abandonment, and the question of time having nothing to do with the single issue tendered upon defendant’s part, * * * the instruction requested had no materiality to the issue, and defendant cannot assert prejudice.”
“The court instructs1 the jury that, if the evidence shows that ther'e was an agreement between the said plaintiff and one McClure that if any trade was made through the efforts ■■of said McClure with a customer furnished to said McClure .'by said Jackson, that McClure was to receive a comlmission .from the party he represented, and Jackson was to receive a commission from the customer so furnished, that said contract would impose no obligation upon a customer furnished ■for a particular trade, in the absence of fraud on the part of • said customer, seeking to defeat a commission on the trade in contemplation by switching same, to pay a commission on another trade by another customer furnished by said McClure, unless the customer so furnished by said Jackson knew of the arrangement between said Jackson and said McClure a,s to commissions.”
This instruction is an incorrect statement of the law. That the principal is ignorant of the efforts of his broker to procure a customer does not affect the broker’s right to a commission. 14 R. O. L. 321; Graves v. Bains, etc., 78 Tex. 92, 14 S. W. 256; Walker on Real; Estate Brokers, § 454; Sussdorff v. Schmidt, 55 N. Y. 319; Colonial Trust Co. v. Pacific Packing & Nav. Co., 158 Fed. 277, 85 C. C. A. 539.
“You are instructed that, when the owner makes a sale or exchange of real estate which he has placed in the hands of a real estate agent for that purpose, before said agent is entitled to recover a commission or compensation for said sale or exchange, he must show by a preponderance of the evidence that he was the procuring cause of said sale or' exchange,, and I charge in this case, if you find from the evidence that the defendant, D. M. Brower, actually made the exchange of the 160 acres of land described in plaintiff’s complaint with one Trigg for certain lands in the state of Texas, then before the -plaintiff, E. C. Jackson, can recover compensation for said exchange, it is incumbent upon him to satisfy you by a preponderance of the evidence that he was the agent of the defendant for the sale or exchange of defendant’s said land, and that he was the procuring cause of said exchange, and that said parties were brought together, and that said exchange was brought about and was the result of services actually rendered by him, or those acting for him and in his behalf, or both, and if he has established these facts by a preponderance of the evidence, then he is entitled to a .verdict in his favor.”
Appellant’s objection to this instruction is that it implies that a real estate agent can delegate his authority in a sale of his principal’s property tó another agent without his principal’s consent. The general rule is that an agent in whom is reposed trust or confidence, or who is required to exercise discretion or judgment, cannot intrust the performance of his duty to another. 31 Cyc. 1425. But this general rule, however, does not prohibit a broker from employing others hr perform a service involving no skill, discretion or exercise of judgment, a service peculiarly clerical or ministerial. See cases cited in note to case of Sims v. St. John, 43 L. R. A. (N. S.) 796. This instruction is not attacked upon the ground that there was no evidence warranting the giving of the same. Assuming that appellee employed others to show the Texas land to appellant, was this such an act as could not be delegated? This must be answered in the negative. Appellee had no power to fix the terms of sale, or do anything else other than bring to the appellant some one who was willing to trade upon terms to be stated by appellant. Such being, true, the instruction in question was not subject to the attack directed against it.
For the reasons stated, the judgment will be affirmed; and it is so ordered.