191 N.W. 464 | N.D. | 1922
Lead Opinion
Statement.
This is an action to recover a broker’s commission. The jury returned a verdict for $2,000 in plaintiff’s favor. Defendant has appealed from the judgment and from an order denying judgment
Pursuant to defendant’s testimony, he never employed plaintiff to secure a purchaser for the Tennessee land: He had employed Koffel previously as an attorney but had a disagreement with him concerning business transactions: Plaintiff went with him and Paul to Tennessee and Florida: Koffel asked defendant if he wanted to trade for Florida land but defendant said nothing about commission and did not promise to pay any: Defendant and Paul made a trade: Defendant received some 4,500 acres of wood land in Florida. Defendant deeded to Paul some property in Bismarck and in North Dakota and also the Tennessee land: Paul accepted the deeds and the title to the Tennessee land but there is litigation growing out of this exchange which is still pending. Upon cross-examination he testified that he might have told plaintiff that, if he could find a buyer for his land, he might do something good for him; that he told him to try and sell this land for cash; that Koffel brought a buyer and told defendant that he could meet him at plaintiff’s office. The trial court submitted to the jury the issues as to whether there was any agreement between the parties for plaintiff to furnish and bring to the defendant a buyer for his land in Tennessee and whether there was a sale of the land under such ágreement. Also, the issue was submitted of the reasonable value of the plaintiff’s services up to the sum of $10,866. The defendant specifies as error the sustaining
Decision.
A broker who, pursuant to the contract of employment, has produced a purchaser ready, willing, and able to purchase the land of his principal upon terms satisfactory to the principal is entitled to his commission. Paulson v. Reeds, 33 N. D. 141, 151, 156 N. W. 1031; Harris v. Van Vranken, 32 N. D. 238, 155 N. W. 65; Paulson v. Reeds, 39 N. D. 329, 167 N. W. 371, id., 48 N. D. 90, 183 N. W. 641; Ball v. Dolan, 18 S. D. 558, 562, 101 N. W. 719; Lund v. Bapp, 25 S. D. 439, 127 N. W. 548; Tilden v. Smith, 24 S. D. 576, 124 N. W. 841.
The brokerage contract involved is to procure a buyer, not to effect a consummated sale. 9 C. J. 592. Accordingly, the plaintiff was entitled to his commission although the details of the sale and trade have not been fully consummated. Paulson v. Reeds, supra; Minder & J. Land Co. v. Brustuen, 26 S. D. 38, 127 N. W. 546; 9 C. J. 596. Through the verdict of the jury, it is established that defendant employed plaintiff to procure a buyer for his Tennessee land and agreed to pay him a good commission. It is not questioned that plaintiff did procure a buyer for defendant’s land in Tennessee and that a binding contract therefor was made between defendant and Paul. Pursuant to this contract, defendant deeded to Paul his Tennessee land, also some land in North Dakota. Defendant received about 4,500 acres of wood land in Florida. So far as this record discloses, the only reason why the terms of the sale have not been fully consummated is that Paul, or the defendant, claims that some of the terms of this contract have not
Dissenting Opinion
(dissenting). Tbe plaintiff sues for tbe reasonable value of services rendered defendant as a broker in tbe sale of certain real estate in Tennessee containing 10,866 acres at $4-5,000. Tbe complaint avers that tbe services were reasonably worth $1 an acre. Tbe plaintiff recovered a verdict and judgment for $2,000, and defendant appeals from an order denying a new trial. Tbe answer is merely a general denial. It does not state tbe facts on which counsel for -defendant relies and which fairly appear from tbe record. ■ Tbe facts are that tbe services which plaintiff claims to have rendered were of no value and were such as to entrap tbe defendant and to lead him into a great loss. Tbe Tennessee land was a mountainous tract of no value. Tbe plaintiff did not in any manner cause the sale of tbe same for $45,000 or any sale whatever. Defendant did not sell tbe land or have any opportunity to sell it for any sum, not even $1 an acre. Tbe plaintiff-merely introduced defendant to one Paul as a person who might be willing to dicker for the Tennessee land in exchange for Florida lands. Tbe result of tbe dicker being that defendant was played for a sucker by Paul and induced to give away bis worthless Tennessee land without any consideration, and in addition, to convey to Paul land and
It is quite manifest that the defense of the action was not well conducted and that a mere general denial was not a proper answer and it did not fairly present the defense. However, that does not seem a good reason for a denial of justice. The plaintiff does not show the real transaction and by objections he prevented any such showing. There is no evidence that his services were of any benefit to defendant. True he says that his services were worth from $3 to $5 an acre, but he does not show that defendant realized from the Tennessee lands $1 an acre. Defendant testified he knew the value of the services and yet he was not permitted to state the value. That was possibly by reason of misunderstanding the decision of this court in case of Paulson v. Heeds, and it may be that decision is like an evil tree and that it does tend to bring forth evil fruit. However, it does fairly appear that the services were a great damage and a loss to the defendant. Counsel for defense persistently tried to show the whole transaction and to show the great loss resulting from the deal with Paul, but he was excluded on technical points, and chiefly because it was not alleged in the answer. Counsel for defense sought to show that there was no completed sale; that the services in regard to the sale were of no value and that a lawsuit for a rescission of the sale was pending in the courts the same as in case of Paul v. Leutz, and the testimony was excluded. At abstract, page 46, Mr. Burke says: We want to show what the deal was and to show that it was not a deal for the Tennessee land. But his attempt to show it was denied. However, there is some showing of the lands and
Dissenting Opinion
(dissenting). As stated in the majority opinion, the defendant specified error in the sustaining of plaintiff’s objection to three questions. One of these questions was as follows: “Just tell the jury what the value of the services of the sale of that Tennessee land under the conditions under which it was sold.” It is my view that that question was a proper one and defendant should have been permitted to answer it. It was competent to show the reasonable value, if any, of plaintiff’s services in the transaction as a broker, and that was an issue submitted by the trial court to the jury. If defendant was not permitted to introduce any evidence in that respect, that was a denial which prevented him from proving his defense.
The judgment should be reversed and the case remanded for a new trial.
