94 Neb. 346 | Neb. | 1913
From a judgment of the district court for Lancaster
The petition sets out the following contract: “Lincoln, Neb., Nov. 13, 3909. We the undesigned agree to pay the Lincoln Realty Co., of Lincoln, Neb., a commission of $3 per acre on all lands sold by them, said commission to be based on our regular selling terms, one-half cash of said purchase price, said lands owned and controlled by us in Finney and Scott counties, Kansas, said commission due and payable when deal is closed. Such parties to have the following territory: Lancaster, Otoe, Saunders, Seward, Saline, Gage and Jefferson counties, and Cass county. The Garden City Land & Immigration Co., by H. J. Wells. H. J. Wells, 407 Commerce Bldg., Kansas City, Mo.” — and alleges that plaintiff sold 320 acres to J. D. Heugel, 160 acres to J. O. Greenawalt, 160 acres to H. W. Strode, and 400 acres to Clarence Shumway, “all of said lands being located in Scott county, Kansas, and sold under the terms and conditions of the contract ;” that there is due plaintiff a balance on account of such commission of $2,040, for which judgment is prayed, with interest from March 8, 1910. For answer to the petition as to tlie sale to Heugel, defendant alleges that the sale was in part a trade or exchange, in which, “in part payment of the purchase price, there was conveyed by the purchaser to the defendant two houses and lots in Lincoln, Nebraska, and the balance of the purchase price, $3,600, was paid by the purchaser in cash;” that it was agreed between plaintiff and defendant “at the time of said sale” that one of said two houses and lots should become the property of the defendant, and the other the property of the plaintiff and one Wells, and that when the last-mentioned lot should be sold the proceeds of. said sale should be divided equally between plaintiff and Wells, and the other house and lot remain the property of defendant; that the two houses represented all the profit there was to the defendant in the sale of the land to Heugel, and in consideration of that fact it was agreed
We will consider first the Heugel deal. As to this deal,
As stated in the brief of counsel for defendant, “the three remaining transactions call for an interpretation of the agency contract with reference to the time when commissions are due.” The contention made by defendant is that the words in the contract, “said commission due and payable when deal is closed,” mean when the deal is finally consummated by the actual transfer of the property by the defendant to the purchaser secured by plaintiff; while plaintiff’s contention is that those words mean that the commission is due and payable when plaintiff has done everything there is to be done by it; that is to say, when it has brought the purchaser and seller together, and a sale by them has been fully negotiated and agreed upon, and an executory contract for the performance of that agreement entered into between the seller and purchaser. We think the plaintiff’s contention is sound and should be sustained.
As to the Greenawalt deal: This appears to have been to some extent an exchange of property. ' Defendant was to accept from Greenawalt three lots in the town of Day-kin and a stock of merchandise. When the deal was agreed upon, an executory contract was entered into between defendant and Greenawalt. Mutual abstracts of defendant’s land and Greenawalt’s lots were made, examined and approved. The inventory of the Greenawalt stock of merchandise was made by Mr. Harris, of plaintiff company, at the request of Mr. Hope, president of defendant. Mr. Harris testifies that no objection was made to the same. There is no contention made in this case that there was to be any rebate or modification of commission. Upon this branch of the case the court instructed the jury that, if they found from the evidence that the defendant refused to carry out the terms of the contract with Greenawalt, upon such refusal taking- place, plaintiff would be immediately entitled to the commissions contracted for in his contract, unless the refusal by defendant to carry out the contract was for the reason that. Greenawalt was unable to perform on his part. There is no conflict in the evidence that Greenawalt was ready and willing and entirely able, and had prepared his deed, ready to complete the contract.
We have been unable to discover any prejudicial error in the record. The judgment of the district court is therefore
Affirmed.