10 Utah 462 | Utah | 1894
This cause was brought in the district court by the plaintiffs against the defendant to recover commission as real estate brokers in Salt Lake City. Plaintiffs claim that on or about September 1, 1889, the defendant employed them, as such brokers, to procure some one “ ready, willing, and able to purchase from defendant” certain premises described in the complaint; that the plaintiffs accepted the employment; that they were ready to procure
At Groesbeck's request, and on his promise of payment, respondents advanced as a loan to him $200, as a cash payment to bind the bargain. Thompson was then absent from the city, and respondents drew their own check, payable to him, for $200, and gave it to James M. Ken-nelly, who was at that time a partner of Thompson, and requested said Kennelly to send for Thompson, so that the sale might be consummated, and to also deliver the check
The appellant excepted to the refusal of the court to give his second request to charge, as follows: “The jury-are instructed that if the plaintiffs were agents of the said defendant to sell his land, as claimed in the complaint herein, and as testified to by them, then it was their duty, in transacting the business, to act wholly in his interest. And if, in making the contract or transacting the business, they acted for or in the interest either of themselves or of John A. Groesbeck, or any other party than the defendant, that would be a violation of their duty, and the plaintiffs cannot recover.” Had the issue of fraud or bad faith on the part of the agents been alleged in the answer, and proof introduced to sustain it, this request might very properly have been given; but as the answer only denies the allegations of the complaint, and in no manner sets up any fraud or misconduct on the part of the respondents, we do not think the question raised by the request was within the issues before the court, and was therefore properly refused. Schmidt v. Pfau, 114 Ill. 500, 2 N. E. 522; Pom. Rem. & Rem. Rights, § 687; Lefler v. Field, 52 N. Y. 621; Capuro v. Insurance Co., 39 Cal. 123; Kent v. Snyder, 30 Cal. 666; Hager v. Thomson, 1 Black, 91.
It appears that, after the appellant knew that a written contract of sale had been' given the purchaser, he received the 1200 check in part payment for the land, and retained the check in his possession for about 10 days. After receiving the check, he expressed satisfaction with the sale, and no particular fault was found with it, until he discovered that he could not buy out the lease upon the property and the land had advanced in value. Then he
The fact that respondents loaned the $200 to Groesbeck with which to make the first payment was no fraud on the appellant, and in no manner altered his position. Thompson, the appellant, did not require any money to be paid down before the delivery of the deed, and the prepayment of $200 was to his benefit and advantage. It .seems,to us that the respondents carried out the terms of the agreement, and found a purchaser who was able and ready and willing to purchase the land in question at the price offered and agreed upon by the parties. The whole •case was fairly left for the consideration of the jury, •under proper instructions from the court. Upon the whole record, we find no error. The judgment of the Third District Court is affirmed.