28 S.D. 451 | S.D. | 1912
Appeal from the circuit court of Spink county. Action for commissions. Jury trial. Verdict for plaintiff upon which judgment was entered. Defendant appeals from the judgment and from an order overruling his motion for a new trial. The complaint alleges that plaintiff is a real estate broker engaged in the business of selling and exchanging lands and stocks, with
Defendant’s answer is, first, a general denial; second, that any transactions had between defendants and Berkner Bros, are not yet closed, and if plaintiff was instrumental in bringing defendant in communication with Berkner Bros, he was acting as the agent for Berkner Bros, and received his commission for such services from them; third, that, if plaintiff did act as agent for defendant, he was unfaithful to his trust in that,, without the knowledge or consent of defendant, he bargained for a commission from Berkner Bros., by reason of which defendant was not liable for any alleged services, but defendant denies that any were rendered. Appellant presents 58 assignments of error, and alleges that the evidence is insufficient to support the verdict for 15 specific reasons, and also assigns 4 particulars wherein the verdict is alleged to be contrary to law and evidence. Much to our relief and satisfaction, however, we find this great number of assignments grouped and discussed in appellant’s brief under certain propositions to be considered upon this appeal. At the close of plaintiff’s case, defendant moved the court to instruct the jury to return a verdict for defendant on the grounds: (1) That the evidence does not show that plaintiff was the procuring cause of the transfer of defendant’s property; (2) the evidence discloses that plaintiff was not acting in good faith toward defendant as his broker and agent, in (hat he was acting for Berkner Bros, in the same capacity as for,
George W. Eangford, Real Estate, Collections of Rents. Aberdeen, Brown County, S. D.,
6 — 17—1909.
John Issenhuth, Northville, S. D.
$12,000 Gen. Mdse, about .......................... $12,000
Bldg............................................... 3,000
Fixtures ........................................... 1,000
$16,000
Will invoice at 1st cost with 2 per cent, for freight. 2 per cent. com.
Plaintiff testified: “It was in my own handwriting and was drawn up the 17th day of June, 1909, at my office in Aberdeen. Defendant was present when it was made. Made the memorandum from statements made to me while he was looking at me. Sat right at the desk close together.” Plaintiff then offered in evidence Exhibit A "as a corroboration, not as a contract — a memorandum made at the time, because there is a form of general denial in the answer which puts in issue the fact whether this was
“Aberdeen, Brown County, S. D. 6 — 25—09. John Issenhuth, Northville, S. D. — Dear Sir: Berkner Bros, of Sleepy.Eye, Minn., have just listed with me for trade, 640 acres, 7 miles north of Wjyndmere, N. D., Richland Co. The price is $40.00 per acre. 480 acres are in crop, and buildings are but moderate. A man J. J. W. Devorak living at that town of about 1,500 population knows the land well and would they say take a man out free to1 see the land. One of the brothers was in here last night and said if you would go and look the land over, and like it well enough to make a contract subject to their acceptance, they would come at once. The midnight train catches a train at Oakes, and you can reach the land and get to Oakes the same evening. I expect to be in Northville over Sunday, and we can talk it over to-morrow evening. There are 200 acres of flax, 100 to wheat and‘balance to corn, oats and barley, but he wouldn’t say as to crop. They get all on 160 acres and half of balance. Yours truly, Geo. W. Langford.”
Plaintiff further testified, in substance, that he Went to North-ville the next Sunday and saw defendant on the street right after dinner; talked to him about going up to see the land and he said he could go out on Sunday and only miss a day and get back Monday night. Some weeks later had a conversation with him about the terms of the deal that he made. Eirst learned that
Plaintiff thereupon called defendant, John Issenhuth, for “cross-examination under the statute” (chapter 72, Laws 1909), who testified that he was not acquainted with Berkner Bros, on the 17th day of June, 1909, nor at the time he received plaintiff’s letter advising him'of the prospective deal; that about the 27th or 28th of June he went to Richland county, N. D., to see the land of Berkner Bros, referred to, being induced to do so by plaintiff’s letter; that he entered into a contract with Berkner Bros, for the exchange of his store, lot, and stock of goods, for the Richland county land; that pursuant to said contract he received a deed from Berkner Bros, for the land, and deeded his lot and store building and gave a bill of sale of his stock of goods at Northville to Berkner Bros.; that the store building, lot, and stock of goods were turned in on the trade at the estimated value in the contract of $17,700; that no mention was made of Berkner Bros, when he was in Langford’s office on June 17th. The defendant then called plaintiff, George W. Langford, as a witness “for cross-examination "under chapter 72 of Laws of 1909,” who testified that on June 24, 1909, he had a conversation with Edward Berkner of the firm of Berkner Bros.; that this was the first time he knew of Berkner Bros., of that they had land in Richland county, N. D. ; that Edward Berkner at that time listed with him 640 acres of land for sale or exchange as stated in the memorandum marked “Exhibit I,” made at the time. The witness was then asked to state what arrangement or understanding, if any, he had with
Defendant, John Issenhuth, being recalled, testified that the witness Swan was not in Langford’s office at any time when he was there the 17th of June; that at the time the contract of exchange was drawn up between himself and Berkner Bros, he stated to them that he was to pay Langford 2 per cent. We believe the foregoing covers substantially all the material evidence in the case.
We do not find in the record anything which could have prejudiced the rights of appellant in the calling or examination of witnesses under this statute.
The instructions given fairly and sufficiently submitted to the jury the question whether, at the time of his employment, plaintiff advised defendant that he expected a commission from both parties, should a trade be consummated, and whether Berkner Bros, were advised that plaintiff expected to receive a commission from plaintiff, and consented thereto. There is a direct conflict in the evidence as to whether plaintiff at the time of the listing told defendant he expected to receive commission from both parties, while the evidence is undisputed that Berkner Bros, were so advised and consented thereto. The jury were told, in effect, that,
A careful examination of the entire record shows that the 'defendant, upon the witness stand, admitted every item mentioned in the written memorandum improperly received by the court, and that every fact sought to be elicited by defendant’s counsel upon cross-examination of plaintiff’s witnesses was fully testified to by the same witnesses in the course of the trial. We are of opinion, therefore, that these rulings, while erroneous, could not have been prejudicial to defendant’s rights, and ought not to be held to constitute. reversible error.
The judgment and order of the trial court are affirmed.