181 Iowa 77 | Iowa | 1917
I. The petition alleges that, on or about September 26, 1911, plaintiff entered into oral contract wherein it was agreed plaintiff should undertake to find a purchaser for a certain 12-acre tract of land belonging to defendant, and located near Cedar Rapids; that, if he' found one, defendant would pay a commission; that thereupon plaintiff saw one Leibold, went to said tract with him, showed all of it to him, told him the price asked by defendant, undertook to close the sale with him and made further appointments with him in continuance of these negotiations; that Leibold went direct to defendant and they effected a sale and purchase to Leibold for $4,150; that the reasonable commission for the services rendered by plaintiff is $128.75, and it has not been paid.
The answer denies all not admitted; admits Leibold went to defendant and that he sold the tract to him for $4,150; avers the sale was made without assistance from plaintiff, and that plaintiff tried to prevent the sale by word and act, has thereby waived any right to commission, and is barred and estopped to claim one.
In the sustained motion to direct verdict, defendant asserted and he now asserts that the following matters are established by the evidence introduced by plaintiff:
' (a) There was no contract between the parties wherein plaintiff was employed by defendant to sell the property in question.
(c) If a contract was made it was to sell at a price fixed therein, and plaintiff had no buyer who was ready, willing and able to pay that price.
(d) Plaintiff, instead of furthering the sale, tried to prevent it.
(e) He was not the agent of defendant, but of Lei-bold, who bought of plaintiff, and so acted in the interest of the buyer as that he may not have a commission from defendant, because of bad faith.
(f) If there was ever a contract, plaintiff revoked it and rescinded same three or four days before any sale was consummated; and that no contract existed at the time defendant made sale. Further, it was and is claimed that there is no competent evidence to show what the claimed services are reasonably worth, and hence nothing upon which a recovery of plaintiff conld be based.
It appears in evidence that plaintiff saw an advertisement of defendant offering certain property of the defend-' ant for sale and asking intending purchasers to call at the office of the Star Printing Company; that thereupon plaintiff called on defendant and asked him the price of the advertised tract; that the upshot of the talk was defendant advised plaintiff that a Mr. Russell might examine the property at any time and that plaintiff should bring on a buyer whom plaintiff claimed he might induce to buy, and as quick as he could; that plaintiff answered he would get word to this buyer as quick as he could; that thereupon plaintiff went to look at the property and then induced one Leibold, who finally bought, to come and have dinner with plaintiff, and arranged with him that after dinner he would take Leibold out to see the property of defendant; that after dinner he showed him some lands for sale, but Leibold
If there were not a quite general custom to sustain motions to direct verdict in their entirety, when sustained at all, we feel sure the trial court would not be before us in the position of holding a jury might not find from the evidence the plaintiff was employed by defendant to find a purchaser, that he found one, that plaintiff sold to the purchaser found, and that plaintiff is in no position to complain that the sale was not made on the terms that he fixed when he employed the defendant. We think there was suf-’ ficient evidence upon which a jury could find for plaintiff upon these points, though we are unable to see that Fenton v. Miller, 153 Iowa 747, Jones v. Ford, 154 Iowa 549, Lieuwen v. Kline, 142 Iowa 14, and Gilbert v. McCullough, 146 Iowa 333, which appellant cites, afford his claims any aid. We think, also, that most of the objections made against this being a jury question are met and the contentions
We find, too, there was no evidence of a double agency or of acting in the interest of the buyer in such bad faith as that plaintiff should be on that account denied a commission. And beyond all question, too, there was competent evidence from which a jury could determine what was the ordinary and usual commission for selling real property in that vicinity during that time.
It appears that, when the plaintiff and Leibold reached the defendant, a controversy arose about commissions, and Leibold said it was usual for the seller to pay, and that whatever offer was made must be net to him. Leibold offered $á,000, and defendant said he couldn’t part with the property for that. At some stage of the interview, the defendant offered the plaintiff a commission of $25, and suggested that Leibold should pay $10 of that. It was at this juncture Leibold remarked that he would pay no commissions. They disagreed about it, and had trouble to such an extent that Leibold told defendant he believed he would back out,
The jury could believe that after the parties seemed unable to agree and plaintiff and Leibold left, the plaintiff told Leibold that they would get out of this deal, — to come with him and he would show him another property'; that he tried to persuade Leibold to see other places instead of the one owned by plaintiff and at that time not bought by Leibold; that he said to Leibold he, plaintiff, thought Leibold could do better than buy defendant’s place; that he offered to bet a hat with defendant that defendant couldn’t sell Leibold the place; that while Leibold will “not make it so strong as to say that at that time he ran down defendant’s property to him,” he did, on the day after this disagreement, tell Leibold not to buy defendant’s place and he, plaintiff, would show Leibold some' other place; that, after they left that day plaintiff tried to persuade Leibold not to buy the property, saying he had other
While the court erred in sustaining some of the grounds of the motion to direct, it did not err in directing verdict for defendant. Hence, we must affirm. — Affirmed.