Latshaw v. Moore

53 Kan. 234 | Kan. | 1894

The opinion of the court was delivered by

JOHNSTON, J.:

J It is conceded that Moore Brothers were employed as brokers to negotiate a sale or exchange of the mill property, and, according to their testimony, the terms of the verbal agreement upon which they recovered in this action were, that Latshaw Brothers would pay them $500 as commission if they would find a purchaser or trade for the mill which Latshaw Brothers would accept. They are not entitled to recover upon this contract unless they were the efficient, immediate and procuring cause of the sale. Upon this question the special findings are inconsistent, and insufficient to sustain the general verdict. After Moore Brothers had been employed to negotiate a sale or exchange of the mill property, Emerson, of the firm of Toole & Emerson, inquired of the Moore Brothers if they had any property to trade for land. He was told of the Latshaw mill property, and was subsequently introduced to the Latshaws as a customer. Some negotiations were had between the Latshaws and Emerson with reference to an exchange of the mill property for a body of land owned by Toole & Emerson, known as the Loomis land. After looking the mill over, Emerson returned to his home at Ellsworth, and a few days later one of the Latshaws went to Ellsworth with a view of looking at the Loomis land, and closing up the trade. He was then informed by Emerson, that upon consultation with Toole, his partner, they had determined that they did not desire to trade for mill property, as they had no knowledge of the value of such property, nor of the business of milling. This appears to have ended the transaction. Toole & Emerson were real-estate agents, and the Latshaws subsequently employed them to find a purchaser for the mill property. Some time afterward, Toole & Emerson ascertained that Yoightlander had a tract of land which he wished to dispose of, and Latshaw was taken to see the same, when he met Voightlander for the first time. Afterward, Emerson took Voightlander to the town of Wilson to see the mill, and while Voightlander, Emerson and Latshaws were examining the mill, they were joined by O. S. Moore, of the Moore Brothers. He appeared to be interested in the negotiations, and at the close of the same wrote out the contract for the exchange of property that was subsequently signed by the parties.

2' ^commission, In this state of the ease, how can it be said that Moore Brothers were the efficient, immediate and procuring cause of the sale and exchange of properties? They did not introduce nor bring together the vendors and purchaser, and the negotiations which resulted in the exchange were instituted by Toole & Emerson. It is admitted that the latter were not the agents of Moore Brothers, and it further appears that Moore Brothers did not have the exclusive agency for the sale of the mill property. It was competent for Latshaw Brothers to em- ' ploy other brokers to dispose of their mill, so long as they acted openly and in good faith with Moore Brothers. It is true that Emerson was introduced to the vendors by Moore Brothers, but he appears to have been introduced as a customer, and not as the agent of another. The negotiations which the parties had in mind at that time related to an exchange of the Loomis land for the mill, but they were unsuccessful. The Voightlander property does not appear to have been within the knowledge of any of them at that time. Moore Brothers had no knowledge of Voightlander until he was brought to the mill by Emerson; and there is testimony in the record to the effect that, when the negotiations for the Loomis land were abandoned, even Toole & Emerson did not know that Voightlander had land he wished to sell or exchange for other property. If Toole & Emerson had been the agents of Moore Brothers, or if the latter had introduced Emerson to the vendors as the agent of Voightlander, there would be some reason to say that the vendors and purchaser had been brought into communication through the agency of Moore Brothers, and that the exchange of property was the proximate result of their endeavors; but the record before us does not satisfactorily sustain either of these views. The mere introduction of the vendors to another broker is insufficient to entitle them to the agreed commission. As has been seen, he was introduced as a customer, and the negotiations instituted were unsuccessful. That introduction did not preclude the employment in good faith of that broker to find a purchaser. If he produced the purchaser, and was the proximate and procuring cause of the sale and exchange, he would be entitled to the commission, rather than the broker first employed. (Eggleston v. Austin, 27 Kas. 245; Holly v. Townsend, 2 Hilt. [N. Y.] 34; Sibbald v. Iron Works, 83 N. Y. 378; Ward v. Fletcher, 124 Mass. 224; Livezy v. Miller, 61 Md. 336; Vreeland v. Vetterlein, 33 N. J. L. 247; Wylie v. National Bank, 61 N. Y. 415; Earp v. Cummins, 54 Pa. St. 394; Lipe v. Ludewick, 14 III. App. 372; Mech. Ag., § 969.

In some of the answers returned by the jury, they found that Moore Brothers were the proximate and procuring cause of the trade, while in others they clearly state that Toole & Emerson produced the purchaser, and the Moore Brothers were only indirectly instrumental in procuring such purchaser. In still others, they find that Toole & Emerson brought the vendors and purchaser into communication with each other, and by reason of their efforts in this respect the trade was effected. This is followed by findings that neither Emerson nor Toole & Emerson were either the direct or efficient cause of the trade being made.

3‘ IistaSed'by flndings. If Moore Brothers were employed to assist in making a sale and exchange, then they might be entitled to the commission, or if, after the purchaser was produced by Toole & Emerson, the vendors had employed Moore Brothers to assist in consummating the sale, they would be entitled to such compensation as their services were worth. But this was not the contract which was pleaded, nor the one upon which a recovery was had. The special find- , . mgs are contradictory and tail to support tne verdict and judgment which have been given.

The judgment will be reversed, and the cause remanded for another trial.

All the Justices concurring.