102 Neb. 619 | Neb. | 1918
The defendant, Lampe, who was the owner of 640 acres of land in Butler county, Kansas, gave to one Shubert, a real estate broker, a contract in writing by virtue of which the broker afterwards executed a contract in Lampe’s name agreeing to convey the land to the plaintiff. Lampe refused to convey the land, and the plaintiff brought this action to compel a specific performance of his contract. The trial court entered a decree in favor of the plaintiff, and the defendant, Lampe, has appealed.
The defendant’s contract with the broker was entitled, “Contract for sale of real estáte, made with-,” and recited: “I, or we, hereby list the below described property with' A. G-. Shubert for sale and authorize them to keep the same on their list until sold or given two days’ notice that the same is hereby withdrawn from the market. * * * I hereby give them the exclusive right to sell the same. And if they sell or furnish me a buyer, or in any way cause the same to be sold, I agree to pay them a commission of 2 per cent, or $-. * * * And if within 30 days after the withdrawal of said property from the márket I should sell to a customer of A. Gr. Shubert I owe and agree to pay them .the above commission the same as if they had made said sale.” Then follows a description of the land and of the improvements and its location, and it continues: “Lowest cash' price $25 per acre, or $500 amount down to bind the bargain $1,000. $-on March 1st. Balance to run-years at--per cent., with the privilege of paying $-.”
In pursuance of this writing the plaintiff alleges that Shubert agreed to sell the land to him for $25 an acre, and took the plaintiff’s check payable to himself for $500
The first question presented is whether the broker’s contract authorized him to execute a contract of sale in the name of his principal that a court of equity would specifically enforce. It has been decided in this state, and by other courts, that the use of the word “sale” or “to sell” in a broker’s contract is not necessarily conclusive that the broker may execute a binding contract of sale in the name of his principal, but, like other, contracts, the real intention of the parties in that particular is to be determined from a consideration of the whole contract in the light of the circumstances surrounding the making thereof. Whitehouse v. Gerdis, 95 Neb. 228.
The broker’s contract in question is in some respects peculiar. It contains matters that might indicate that the broker was authorized to bind his principal in a written contract of sale, and also contains matters that indicate the reverse. In addition to the use of the word ‘ ‘ sale ’ ’ and the exclusive right to sell the same, it contains the clause: “If they sell or furnish me a buyer, or in
It appears that the defendant, more than two days before the alleged contract of sale was delivered, refused to sell the land upon the proposed terms. This he had a plain right to do under the provision of the contract, which was that the -broker should not keep the land on his list forcsale after the owner had given two days’ notice that he withdrew it from the market. The plaintiff’s answer to this is that the contract of sale was made orally before the owner of the land had given any notice that he withdrew, the land from the market, and that the
It does not appear that the defendant attempted to avoid payment of commissions to the broker, or that ho intentionally- violated the reasonable construction of his contract with the broker. The attempt of the plaintiff and the broker to compel the defehdant'to dispose of the land against his will after they had referred the matter fairly to the defendant’s decision, and found that he-did not desire to have his lands disposed of in that way, does not. commend itself to the conscience of a court of equity.
The trial court should have entered judgment in favor of the.defendant, and the judgment entered is reversed and the cause remanded for that purpose.
Beversed.