134 P. 532 | Idaho | 1913
Lead Opinion
This is an action by a broker against his principal for commission for selling real estate. The complaint alleges that the defendant represented to the plaintiff that she was the owner of certain real property, and that on the 4th of August, 1911, the defendant, through and by her husband, A. G. Wilson, acting as her agent, authorized and empowered the plaintiff to find a purchaser for the said land above described, and at said time named a certain price and terms for the sale thereof, and at said time agreed to pay the plaintiff, in case he found a purchaser, the customary and usual commission, and that in pursuance of such authority the plaintiff found and interested a purchaser in said land and introduced the purchaser to the defendant as a purchaser for said land, and that said purchaser and the defendant negotiated for the sale thereof, and that thereafter on the 8th day of August the purchaser and the defend
The answer of the defendant denies the allegations of the complaint, except as. hereafter mentioned, and denies that she represented to plaintiff that she was the owner of the land, and alleges the fact to be that at the time and for some time prior thereto she was the owner of an undivided one-half interest, and that certain minor heirs of William McGill, deceased, were the owners of the other undivided one-half interest in said property, all of which the plaintiff well knew at all of the times mentioned in the complaint. The answer also denies that she had authorized or empowered her husband, A. G. Wilson, or anyone else, as her agent to deal or act in any manner or thing relative to the sale of said land, and denies that Wilson was by her authorized or empowered to make a contract to find a purchaser, and denies that Wilson did enter into a contract with plaintiff to find a purchaser of the land, and denies that Wilson named or fixed ■ any terms or price of sale, and denies that Wilson, acting as her agent or otherwise, agreed to pay plaintiff any commission. The answer also denies that, pursuant to any authority given to plaintiff or otherwise, plaintiff found or interested a purchaser in said land, and admits that plaintiff brought one Arthur Mineau to look at the land, and thereafter a certain contract in writing was entered into between Mineau and the defendant, and that under said contract and the terms thereof Mineau and the defendant entered into negotiations for the sale of the land. The defendant also denies that the purchaser so found or interested or introduced was able, willing or ready to purchase the land upon the price or at the terms named or agreed upon in the written contract;
The defendant then pleads a written contract made on August 8, 1911, relating to the purchase and sale of the real estate described in the complaint, and that at that time she was the owner of an undivided one-half interest in the same; that certain minor heirs of William McGill, deceased, were the owners of the other half, and that the matter of guardianship of the minor heirs was pending in. the probate court of Twin Falls county; that by virtue of said contract the defendant agreed to sell to Mineau under certain terms and conditions therein expressed, but upon the express condition that if Mineau did not succeed in securing the interest in said land of the minor heirs said contract of sale was void; that Mineau was the conditional or prospective purchaser secured by plaintiff, but Mineau did not purchase or secure the interest of the minor heirs in said land, and upon information and belief defendant alleges that Mineau was not ready, willing or able to make a bid for the purchase of the interest of the minor heirs at the public sale held under the order of the probate court in and for the county of Twin Falls, and failed to secure and purchase the same, although he had full opportunity to do so, and because of such failure and unwillingness did not become the purchaser of said land, and the contract was of no force and effect, and the defendant therefore. alleges that the plaintiff did not find a purchaser for the land described in the complaint.
Upon these issues of fact the case was tried before a jury and a verdict rendered for the plaintiff for the sum of $250. This appeal is from the judgment and from the order overruling the motion for a new trial.
A motion to strike from the files the transcript of the testimony and proceedings was made, and is overruled. The same was properly corrected before argument.
A motion was also filed to dismiss the appeal for certain reasons, and this motion is also overruled. This motion is
Upon this motion the appeal from the judgment was admitted upon the argument not to have been taken within the time prescribed by law, and for that reason that part of the motion is sustained. The remainder of the motion, however, is overruled, and it is sufficient to say that the objections have been cured and are not well taken.
The first assignment of error is that the evidence is insufficient to justify the verdict and judgment. The particulars in which the evidence is insufficient are specified as follows: That the evidence shows that the contract of brokerage required the broker to make a sale of the premises, and that the evidence shows that the plaintiff failed to.make the sale or secure a purchaser who was ready, able or willing to bid a price for said premises which would secure the same, and that the evidence shows that the contract of sale, and the only contract entered into by the defendant, looking toward the sale of the premises, was in writing, and that the sale thereunder to the person secured by plaintiff failed through no fault of the defendant.
It is the contention of the appellant that there was no contract of employment made between the parties, and, second, that even if there was an employment, such employment was not carried out. The respondent replies to this contention, and claims that there is a conflict of evidence upon each of these contentions, and that being so, and the jury having passed upon such questions, the verdict of the jury should not be disturbed.
Under this rule it is necessary to allege and prove that a contract of employment was made, and that under such employment the broker secures a purchaser who is ready, willing and able to buy the property at the established price, or that the broker secures a purchaser who buys the property. (Church v. Dunham, 14 Ida. 776, 96 Pac. 203; Sorton v. People, 47 Colo. 252, 107 Pac. 255; Castner v. Richardson, 18 Colo. 496, 33 Pac. 163; Sullivan v. Milliken, 113 Fed. 93, 51 C. C. A. 79.)
Examining the evidence we find that the plaintiff himself testifies that he was introduced to Mrs. Wilson, and he told her he was in the real estate business and heard that she wanted to sell forty aeres. “And I told her I would like to get the price and to sell it for her, and she said ‘Yes, we are wanting to sell it.’ They said they had listed it with Mr. Coggins, another real estate man, and I told her I was listing on another piece of property and I wanted to list her property, and I asked her the terms, and she said that Mr. Wilson looked after her business. I went and talked with Mr. Wilson and had quite a conversation, and he told me that the land belonged to his wife and children and he wanted to sell that and buy something of his own. We made
It will be seen by this evidence that the understanding between the parties was that the respondent would find a purchaser, and the price was agreed upon and the terms of sale, and the proposed purchaser was Arthur Mineau; and it appears also that afterward, on the 8th day of August, 1911, an agreement was entered into between the appellant and Mineau, whereby Mrs. Wilson gave an option upon said property, whereby Mineau agreed to buy the undivided one-half interest of the three minor heirs of William McGill, deceased, and the'children of Mary Wilson, “at a guardian’s sale of said property within ninety days, for a like price, to wit, the sum of $2,500, and upon like terms; and if he shall not buy said interest of said1 minor heirs for the said sum of $2,500 upon the terms aforesaid, then this agreement shall be of no effect, and first party shall be under no obligation to convey her interest in said property.”
It will be observed from this contract that Mineau was to purchase plaintiff’s interest in said property at the sum of $2,500, and that the interest of the minor children should be purchased at a guardian’s sale of said property for the sum of $2,500, and that in case Mineau should not buy the interest of the minors for $2,500, then the contract was forfeited and of no effect.
This contract was merely an option to buy, and it expressly reserves to Mineau the privilege of either buying or not buying the interest of the minor heirs, and if he buys
In the case of Brown v. Mason, 155 Cal. 155, 99 Pac. 867; the court in effect held: “Before the broker can be deemed to have earned his commission, it must appear that during the written option allowed by the owner, or some extension or waiver thereof by the pwner, he found a purchaser ready and willing to purchase, and became the efficient agent or procuring cause of the sale finally effected.”
We think that the duty of the broker under the agreement made in this case is to bring the minds of the buyer and seller to an agreement for a sale, in regard to the price and
Taking this view ox the evidence, we have no doubt about the insufficiency of the evidence to justify the verdict and judgment. There is no evidence whatever which shows that the respondent found a purchaser or that a sale of the property was made to the proposed purchaser. The instructions of the trial court were very full and clear, and the jury did not follow the law as given by the trial court. We think the law was clearly given to the jury, and that there was no error in the instructions given or in refusing instructions requested by the appellant.
The judgment is reversed and a new trial granted. Costs awarded to appellant.
Rehearing
ON PETITION FOR REHEARING.
A petition for rehearing has been filed in this case and a brief of considerable length has been filed by the attorneys for respondent.
The first question discussed in said brief is the ruling of this court on the motion to dismiss the appeal on the ground that a proper bond on appeal had not been filed. There were
“Provided, that when more than one appqal in the same action, whether from the judgment and an appealable order or orders, or from two or more appealable orders, are taken at the same time, but one such undertaking or deposit for damages and costs need be filed or made. If any undertaking be insufficient or defective in any respect, such insufficiency or defect shall be deemed waived unless the respondent, within twenty days after the filing of such undertaking, shall file and serve upon the appellant or his attorney a notice, in writing, pointing out specifically the defects and insufficiencies of such undertaking. No defect or insufficiency not thus specifically pointed out, shall subsequently be urged against the undertaking or the appeal. The appellant may, within five days after such service of said notice, file a new undertaking which shall be in lieu of the one previously filed. ”
In the case at bar, the insufficiency of, or defect in, said bond was waived under the provisions of said section, as the respondent did not within twenty days after the filing of such undertaking file and serve upon the appellant, or his attorney, a notice in writing pointing out specifically the defect or insufficiency of such undertaking. It also appears that an undertaking has been filed curing the defects in said undertaking. This was filed soon after the service of said notice. Under the provisions of said section, if one desires to object to the sufficiency of am undertaking on appeal, he must make his motion and point out such defects or insufficiencies within twenty days after the filing of the undertaking. And if that is done, the appellant may, within
We have fully considered in the former opinion all of the questions raised by said petition for a rehearing. A rehearing is denied.