154 Iowa 549 | Iowa | 1912
As the arguments of counsel are directed principally to the question whether there was any evidence to support a verdict for the plaintiff, it will be necessary to set out in some detail the facts to which the testimony had relation as bearing upon the making and performance of the contract under, which plaintiff claims to recover.
The defendant, a widow, formerly residing in Johnson county, but at the time to which the testimony in this ease relates a resident of Enid, Okla., was the owner of a one-third interest in fee in a farm of three hundred and fifteen acres situated in Johnson county, which had 'belonged to her husband before his death. The two-thirds interest belonged to the husband’s heirs. In a proceeding for partition of the farm, which was pending during the entire course of the negotiations to which the testimony relates, defendant had been appointed referee to make a sale of the farm, and before the negotiations were concluded there had been an appraisal of the value of the property at $93 per acre, rendering it necessary that the sale by the referee be for not less than that amount. On February 11, 1909, plaintiff addressed to the defendant a letter, of which the following excerpt is the material part: “Madam: Some time ago I wrote to you, asking if you wanted to sell your farm, and I think that you replied you did an'd your price was $85.00 per acre, but you only offered 50 cents per acre commission for selling it; the commission is hardly large enough to justify me to make very much of
There was certainly evidence tending to show that Durst was ready, able, and willing to meet all the requirements of the defendant, -and that the difficulty about concluding the transaction was not between defendant' as an individual and Durst as purchasex, but a refusal of Durst to comply with requirements insisted upon by the attorney in the partition proceeding representing some of t'he par
But if she saw fit as an individual to employ plaintiff to negotiate for a purchaser on specified terms, and such a pui*chaser was found ready, willing, and able to comply with the terms which she required, plaintiff was entitled to the commission contracted for without regard to whether she was able on her part to make a contract which would secure the property to the purchaser. Counsel for appellant do not question the power of a person who in fact occupies a fiduciary relation such as that of referee, administrator, or executor to enter into a contract which will bind such person as an individual; and we think that the court correctly assumed under the evidence that defendant purported in her negotiations with the plaintiff to act in her individual capacity and not as referee, and that plaintiff entered into the contract with her in her individual capacity.
The judgment of the trial court is affirmed.