91 Neb. 292 | Neb. | 1912
Plaintiff brought suit in the district court for Richardson county, to recover commission upon the sale of a farm. At' the conclusion of the trial the court directed a verdict in favor of the defendant, upon which judgment was rendered, and plaintiff appeals.
The petition alleges- that on September 19, 1908, plaintiff entered into a written contract with defendant to act as agent of defendant in the sale of certain land in Richardson county. A copy of the contract is attached to the petition. The contract described the land and the amount which defendant wras to pay as commission in the event that plaintiff furnished a buyer or was instrumental in any manner in selling or transferring the property. The petition further alleges that the terms of the contract were afterwards modified by a letter, making the selling price of the land $17,000; that later, at the office of plaintiff, on or about December 31, 1908, by mutual agreement between defendant and one Poteet, the defendant and Poteet agreed upon terms of the sale, whereby defendant was to receive $14,500 in cash and notes, and a piece of town property of the valuation of $5,500; that, acting under said contract, at the suggestions and directions of defendant, plaintiff procured the purchaser, but defendant refused to convey, and attempted to withdraw' the land from the market; that a few days thereafter defendant himself sold and conveyed the land in question to the said Poteet; that plaintiff first introduced Poteet to defendant; that plaintiff was instrumental in bringing about the sale and transfer of defendant’s farm, and is entitled to his commission; that defendant’s sale of the farm to Poteet wras for the sum of $20,000. The answer admits the execution of the contract, the withdrawal of the
The evidence shows the making of the contract as alleged; that defendant and Poteet were introduced to each other by plaintiff; that plaintiff sent several other parties to look at the farm, and continued negotiations with Poteet and defendant up to the 31st of December; that he had correspondence Avith defendant while defendant Avas in California and also while he was in loAva; that early in December he telephoned defendant at Eed Oak, Towa; that defendant soon afterwards visited Falls City and again met Poteet at plaintiffs office; that the matter drifted along, plaintiff baAdng talked to defendant and Poteet every few days during the month of December until the 31st of that month, A\dien all the parties were in plaintiffs office and practically agreed on the terms of sale, for $20,000; $14,500 cash, and' city property in Falls City, knoAAm as the Lindell Hotel, for the other. $5,500; that the next day plaintiff drew up a memorandum of AA'hat he understood to be the terms of that agreement, Avhich was signed by Poteet and by plaintiff as agent for defendant; that AAiien he next saw defendant and showed him the memorandum defendant said, “to wait a minute that he Avanted to go and see somebody.” This occurred on the morning of January 2. That in the afternoon plaintiff receded by registered mail the following notice: “The New National Hotel, Falls City, Nebr., Jan. 2, 1908 (1909). W. H. Maddox, Falls City, Nebr. Dear Sir: This is to notify you that I withdraw from the market
The rule invoked by defendant, and the one under which the court evidently directed a verdict in his favor, is that of dual employment. It is contended that because plaintiff Avas acting for Poteet as to the hotel property, and received pay from him for Avhat he did in relation to that matter, he cannot now recover anything from defendant. There is no trouble with the rule contended for,when rightly stated and understood. It .is that a real estate agent, acting for both parties in effecting an exchange of their property, can recover compensation from neither unless the agent’s double employment was known and assented to by both of said contracting parties, or, more correctly speaking, by the one sought to be charged Avith such compensation. The simple question in this case is, did defendant, during the time he was negotiating Avith plaintiff and Poteet for the exchange of these properties, know that plaintiff was representing Poteet as to the- hotel property, and did he assent thereto? If he did not knoAV of it until January 2, at the time he wrote the letter above set out, his action in writing that letter and discharging plaintiff would have been justifiable. If he did know of the relations existing between plaintiff and Poteet, while the negotiations between the three of them were going on, and continued those negotiations from time to time after such knowledge, then his assent to such relations will be concIusiArely presumed.
Plaintiff was clearly entitled to go to the jury upon the evidence introduced, and, for the refusal of the court to permit him to do so, the judgment is reversed and the cause remanded for further proceedings.
Reversed.