219 N.W. 149 | Minn. | 1928
1. There was a former trial resulting in a verdict for the plaintiff. A new trial was granted upon the ground of the insufficiency of the evidence. An order granting a motion for a new trial is not appealable unless granted solely on the ground of errors of law except when, after a former trial, a new trial was granted upon the ground of insufficiency of evidence. Therefore the order from which the appeal is taken is appealable. G. S. 1923, § 9498(4); 1 Dunnell, Minn. Dig. (2 ed.) § 300; Guest v. Northern Motor Car Co.
2. A broker earns his commission when he produces a purchaser ready, willing and able to purchase on the proposed terms, or when the party whom he produces enters into an enforceable agreement with the vendor on acceptable terms. Bankers Service Co. v. Schouweiler,
"If, without any fraud, concealment, or other improper practice on part of the broker, the principal accepts the person presented, either on the terms previously proposed or upon modified terms then agreed upon, and enters into a binding and enforceable contract with him for the purchase of the property, the commission is fully earned. The party presented is then a purchaser, within the meaning of the contract between the principal and the broker, although the sale is not completed or executed by payment of the consideration to the vendor."
The rule stated is not applicable where the broker's commission is fixed at the excess of the purchase price over a net price to the owner, and the purchaser produced is irresponsible. Martinson v. Hensler,
3. On April 1, 1924, the defendant by letter gave the plaintiff the exclusive sale of the apartment building for ten days for $80,000, of which $20,000 was to be paid in cash, $33,000 by a second mortgage, and $27,000 by the assumption of a first mortgage. The commission was to be $2,300. The plaintiff did not procure a purchaser on these terms. There were some negotiations. They did not result in bringing a purchaser.
The apartment building was not owned by the defendant individually. It was owned by himself and his brother, who lived in the east, as trustees under the will of their father. The plaintiff knew that the defendant was not the sole owner. Still the defendant could, if he chose, bind himself to pay the agreed or reasonable value of the plaintiff's services. The new trial was granted substantially *240 upon the ground that the evidence did not sufficiently show that the defendant agreed to be bound individually. The trial court correctly interpreted the evidence.
The defendant signed an earnest money contract, as did the purchasers whom the plaintiff claims he produced, and sent it to his brother in New York, who did not sign. If the defendant intended to bind himself, if the understanding between him and the plaintiff was of that effect, the plaintiff should recover; otherwise he should not. The testimony of the plaintiff is uncertain and persistently given by way of unsatisfactory conclusion. The testimony of the defendant and some of his witnesses is at times shifting and sometimes quite carelessly given. The evidence was not sufficient to sustain a finding of an agreement that the defendant should be bound individually though his cotrustee was not bound.
4. The defendant appeals "from that part of that certain order of the said District Court entered herein on the 28th day of July, A.D. 1926, denying defendant's motion for judgment notwithstanding the verdict." The appeal from a part of the order is ineffectual. St. Anthony Falls Bank v. Graham,
The order granting a new trial is affirmed, and the defendant's appeal is dismissed. *241