28 S.D. 248 | S.D. | 1911
This is an action to recover $240, with interest, alleged to have been received and retained by the defendants in excess of the compensation due to them while employed by the plaintiffs in effecting the purchase of certain described land in Brule county. A verdict having been directed in favor of the defendant Boyts and one returned against the defendant Reynolds for the amount demanded, judgment was accordingly entered, from which and an order denying his application for a new trial defendant Reynolds appealed.
A plain and concise statement of the facts constituting the plaintiffs’ cause of action, as against the appellant, would be substantially as follows: That the plaintiffs employed the appellant to act for them in effecting the purchase of 360 acres of land; that, in consideration of a commission of 50 cents per acre, the appellant undertook and agreed to effect such purchase at the owner’s lowest price; that he procured the land for the plaintiffs for which they agreed to and did pay $15.50 per acre, with the understanding that the owner’s price was $15 per acre, and the appellant’s compensation for his services 50 cents per acre; that after the plaintiffs had paid $15.50 per acre, amounting to $4,960, for the land, under the belief that the owner was to receive $4,800 and the appellant $160, they ascertained that the owner received $14.25 per acre, amounting to $4,560, and the appellant received of the purchase price, and retained, in addition to the compensation' agreed upon, the sum of $240, the difference between the owner’s price and what it was represented to be by the appellant; and that the appellant has refused to return the sum so received in excess-of his agreed compensation, though a return has been demanded. It is admitted by the answer that the appellant procured to be sold to the plaintiff, the land described in the amended complaint for $15.50 per acre, that the plaintiffs paid for the land by cash and notes, and that the appellant has not paid to the plaintiffs the $240 alleged to have been overpaid for the land, though payment thereof has been demanded. All the allegations of the amended complaint not admitted are denied. So the material' issues of fact raised' by the pleadings are whether the alleged contract of em
The evidence conclusively shows that the owner understood the appellant was acting as his agent; that the land was being sold for $15.50 per acre; that 50 cents per acre was going to some person other than the appellant who had assisted him in making the sale; and that 75 cents per acre was to be retained-by the appellant as commission. It also conclusively shows that the appellant received 75 cents per acre in addition to the 50 cents per acre allowed him as commission or compensation by the plaintiffs. This being so, the material question for the jury to determine was the appellant’s relation to the plaintiffs.
It is contended certain conversations with the defendant Boyts in absence of the appellant should have been excluded. There was no reversible error in this respect, the evidence being admissible as against appellant’s codefendant when received, and such as could not have prejudiced any of appellant’s substantial rights.
Appellant’s third request was properly refused because it erroneously assumed that the writing introduced by the plaintiffs established the fact that the plaintiffs knew appellant was the owner’s agent, whereas such writing justified the inference that appellant was adroitly concealing that fact from the plaintiffs.
The entire record has received attention.
Finding no reversible error, the judgment of the circuit court is affirmed.