25 S.D. 439 | S.D. | 1910
This is an appeal by the defendant from a judgment entered upon a directed verdict in favor of the plaintiff. The action was instituted by the appellee to recover of the defendant the sum of $150 alleged to have been earned by the plaintiff as commission on the sale or exchange of lands belonging to the defendant. The material parts of the complaint, after alleging that the defendant was the owner of 80 acres of • land in Minnehaha county, are as follows: “The defendant employed 'the plaintiff to find for and produce to him a customer for said land to whom he might either sell or trade it for other property, and promised and agreed to pay plaintiff for his services in so- doing all such amount above $45 per acre as the .plaintiff might -succeed in obtaining therefor in case of a sale, and to pay him, in case he produced a customer with whom defendant would enter into a contract to trade, all such amount above $45 per acre as such customer should be willing to and agree to allow for said land m such trade or exchange against his property at a valuation mutually agreed upon between such customer and the defendant.” It is further alleged: “That the plaintiff thereupon found a customer for such trade for and produced to the defendant, one John Simons, whom -the defendant thereupon accepted as a customer, and with whom he entered into a contract in writing for the exchange of his said land for a certain 160-acre tract of land belonging to said Simons. And said Simons was " willing, and did agree, to buy and take defendant’s said land in said exchange at $47 per acre, and to convey to defendant -his said 60-acre tract therefor. at the price they . had mutually agreed upon, and was ready and able to carry out the terms of the said exchange contract, but defendant refused to complete -said trade; that the defendant has not paid tire plaintiff for his said services, and now owes him therefor the sum of $160 the value thereof, with interest thereon from and after July 1, 1909.” There is a small balance
The material parts of the agreement entered into between the defendant and Simons are as 'follows: “This agreement, made this 26th day of June, 1909, by and between Mahlon Bapp of Minnehaha county, South Dakota, party of the first part, and John Simons, of Moody county, South Dakota, party of the second part, witnesseth: That the party of the first part sells and agrees to convey to the second party, the following property, to-wit: The south % of the northeast of section 11, township 104, range 49, in Minnehaha county, South Dakota, valued at $3,750.00, and subject to a mortgage of $2,250.00 which second party hereby agrees to assume. In consideration whereof, the second party sells and agrees to convey to first .party, the following property, to-wit: The southwest % of section 30, township 131, range 94, in Adams county, North Dakota, valued at $1,700.00, and subject to a mortgage of $350.00 which first party agrees to assume; and second party agrees to pay $150.00 commission to Dund's Land Agency when transfer is completed.”
It appears from the evidence, -that the defendant entered into the agreement with the plaintiff as alleged in the compliant, and that the contract was entered into by the defendant with the said John Simons after certain changes had been made therein by and with the consent of the defendant. It will be observed that by the contract set out in the complaint the plaintiff was to receive all sums in excess of $45 per acre that he might obtain, either in the sale or exchange of the property. The price, therefore, at $45 per acre, would be $3,600, but it will be observed that by the contract between the defendant and Simons the price fixed as the value of the defendant’s land was $3,750, being $150 in excess of the $45 per acre, and that in said agreement said Simons contracted to pay the extra $150 to the plaintiff directly. There being a mortgage upon the premises of the defendant of
It is contended by the appellant that the plaintiff, having brought his action upon a special contract, was not entitled to recover any sum whatever as commissions, unless the defendant actually received a sum in excess of $45 per acre for his land. It is true that plaintiff brings his action upon a special contract, but it will^ be noticed by the terms of the contract as alleged in the complaint that the defendant promised and agreed to pay plaintiff for his services in so doing all such amounts above $45 per aereas the plaintiff might succeed in obtaining therefor, in case of a sale and to- pay him, in case he produced a customer with whom
The learned counsel for the defendant has cited a large number of authorities to the point that, where a party alleges a special contract, he must prove that contract as alleged, and that proof of an implied contract is not admissible. Undoubtedly the law is correctly stated by the learned counsel, but we fail to see its application to the case at bar as a contract had been made between the defendant and Simons entirely satisfactory to the defendant for the amount of $150 in excess of the $45 per acre, fixed as the net price for the defendant’s land. It seems to be the general rule that where a broker -has produced a customer ready, able, and willing to pay the price agreed upon, and a valid and binding contract -has been entered into between the seller and such customer, the broker is entitled to his commission. Scott v. Clark, 3 S. D. 486, 54 N. W. 538; Ball v. Dolan, 18 S. D. 558, 101 N. W. 719. And see cases cited in the latter opinion.
The contention of the counsel for appellant seems to be that, because the broker had procured a customer who agreed with the defendant to pay so much of the consideration coming to the defendant contracted to be paid in excess of the $45 per acre direct to the plaintiff, therefore his liability to the plaintiff was canceled no> matter what he in fact did to prevent the customer from making such payment. This contention is clearly untenable. The defendant, after having entered into the contract with Simons by which the price of his land was fixed at $3,750, $150 in excess of defendant’s net • price, became liable to the plaintiff for his commission. Simons had secured the $350 on mortgage in North Dakota, and tendered a deed of the property so incumbered to the defendant, and demanded a deed from the defendant, and had thereby shown his ability and readiness to comply with the terms of the contract on his part, and defendant’s failure' to receive the
The judgment of the court below and order denying a new trial are affirmed.