28 S.D. 109 | S.D. | 1911
Action to recover commissions on a land sale. A jury was waived and the case submitted to the court upon an agreed statement of facts. The entire transaction between the parties was by correspondence, and the agreed statement of facts consists wholly of the letters constituting the correspondence,-with the additional stipulated statement that “plaintiff has done and performed everything on 'his part to be done and performed.” On August 30, 1906, defendant by separate written, contracts listed for sale with plaintiff, a real estate agent at Des Moines, Iowa, two quarter sections of land in South Dakota, one in Clark county, at $19 per acre, the other in Beadle county, at $18 per acre, terms of sale upon both tracts $1,200 cash, $640 in two years, balance in ten years, with interest at 6% per cent, on deferred payments, agent not given exclusive sale, but defendant to notify plaintiff within three days if sold by defendant, the prices named to be good for four months, if not sold before. November 1, 1906, defendant wrote and mailed to plaintiff a letter notifying him that he had himself sold the quarter section in Clark county. It is conceded plaintiff never received this letter. On February 28, 1907, plaintiff wrote to defendant as follows: “Mr. J. C. Ash, Delmont, S. D. — -Dear Sir: A few months ago you listed with me the N. W. 18-113-57 in Clark County, S. D., at $19.00 per acre. Can’t you cut this price a little for quick action. I am going out next week and will try to swing it if you will cut the price a dollar or so per acre. I have two or three men who are inclined to that part of the country. Eet me hear from you at once. Write me so I will get the letter here next Monday A. M. without fail.” To which defendant replied: “Will cut that price $100.00 for all cash but $1,400 to run five years, (an old line mortgage at 7 per cent just being negotiated.” March 14, 1907, plaintiff wrote defendant: “I was up to S. D. last week and had a man look at your land and I think I can close a deal with him 'if you will make terms SO' he can swing it.
Plaintiff claims to recover from defendant as commission the difference between $18 per acre, the price offered in plaintiff’s letter of March 23d and accepted by defendant’s telgram of March 23d, and $2i pr acre, the price at which the land was sold - to Gaines & Atkins. The trial court denied plaintiff’s claim on the sole ground that he had fraudulently concealed that the land had been sold for $21 per acre instead of $18 named in the offer of March 23d. Appellant’s counsel argue at length, both orally and in his brief, that defendant should not be permitted to repudiate the indebtedness for commissions by reason of his own mistake as to the land sold, for the reason that, the mistake was not participated in by plaintiff or occasioned by plaintiff’s act. The trial court did not base its conclusions and judginent upon the ground of mistake, but upon the ground of fraud in the concealment of the price at which the land was sold. It is conceded by counsel on both sides that the issues presented by the pleadings are im
We are of opinion the trial court was in error in -holding the stipulated facts sufficient to sustain the finding “that the plaintiff thus secretly contrived to extort from the defendant the sum of $3 per acre * * * in addition to the commission of $100 agreed to be paid the plaintiff by the defendant for negotiating the sale of said land.” The case is remanded to the circuit court, with direction to enter judgment for plaintiff for the sum of $ioo, with costs of that court, unless upon defendant's motion, for good cause shown, upon due notice to plaintiff, the trial court shall direct that the stipulation of facts relating to the question of fraud ón the part of plaintiff be vacated, in which case a new trial shall be had, appellant to recover costs of this appeal.