149 P. 970 | Mont. | 1915
delivered the opinion of the court.
This action was instituted to recover $2,250, alleged to be due as broker’s commission for procuring a purchaser for real
1. To establish the contract sued upon, plaintiff introduced in evidence certain correspondence as follows:
(a) A letter of June 19, 1911, inquiring of defendants the terms upon which they would sell their property.
(b) A letter of June 26 from defendants, in which they stated their terms as $50,000, one-half cash and the balance in ten years.
(e) A letter by plaintiff to defendants, dated June 27, 1911, in which it was made to appear that plaintiff was seeking the property for another and not for himself, and that an option was not desired at that time.
(d) A letter dated September 25, 1911, as follows:
“Mr. Newman, Helena-—
“Dear Sir: This is a good time to get a buyer for the ranch. There may be some one at the fair.
“Dunleavy Bros.
“P. ,S- If you make the deal you get five per cent.
“D. B.”
There was also introduced as part of plaintiff’s cross-examination ;
“Helena, Montana, October 26, 1911.
“C. C. Newman, Helena, Montana—
“Dear Sir: This is to notify you that your option to sell my ranch and property will expire on Wednesday, the first day of November, 1911, at twelve o’clock noon, and unless you furnish a purchaser for the same and the deal is closed before that date, you will receive no commission from me on the sale.
“Yours truly,
“Dundeavy Bros.”
(f) A letter dated December 21, 1911, and received by the plaintiff in due course of mail, as follows:
“C. C. Newman, Helena, Montana—
“Dear Sir: I sold to-day, seventy-five head of my cattle. In reference to the sale of the balance of my cattle and the sale of my lands, I would state that they are still for sale, and the first purchaser who comes and pays my price will be the first one served. My property is for sale, but I will not tie it up by any contract giving an exclusive right to sell or buy.
“Yours truly,
“Dundeavy Bros.”
(g) A proposed option prepared by the plaintiff, but which defendants refused to sign.
(h) A proposed option prepared by defendants, dated May 24, 1912, which plaintiff refused to sign, or at least which was not signed by any one of these parties.
(i) A letter received by plaintiff from defendants on May 28, 1912, dated the same day, as follows:
“Mr. C. C. Newman, Helena, Montana—
“Dear Sir: As you failed to pay the $2,000 yesterday, upon the ranch deal we had, you are hereby notified that all pending negotiations are at an end, and you will please return me the abstract of the property furnished you.
“Yours truly,
“Dundeavy Brothers.
*154 “Mr. C. C. Newman: Return abstract to Mr. McConnell office.
“Tours truly,
“Dunleavy.”
On redirect examination the plaintiff offered in evidence:
(j) An answer to defendants’ letter of September 25, 1911.
(b) An answer to their letter of October 26, 1911.
(1) An answer to their letter of May 28, 1912.
The deposition of John R. King was read to the jury, to the effect that on the last day of May, or the first day of June, 1912, he went to the Dunleavy ranch with plaintiff, saw the real property and a portion of the personal property, and then and there expressed his willingness to make the purchase upon defendants ’ terms. The oral testimony of plaintiff details his efforts to interest prospective purchasers in defendants’ property and his final success with the witness King. He offered also to show that defendants knew of his efforts and acquiesced therein; that when they wrote the letter of October 26, 1911, they also knew that plaintiff had then expended considerable time and money in his work; and finally that he did not consent to the withdrawal of his authority. The answer to defendants’ letter of September 25, 1911, and his offered oral testimony above, were excluded. The foregoing fairly epitomizes the record before us.
It is insisted that the evidence produced in the trial court
In Laux v. Hogl, 45 Mont. 445, 123 Pac. 949, on rehearing, we said: “As between tbe principal and agent, tbe authority of tbe agent may be revoked at any time. Tbe relation of principal and agent is a personal one; and, if tbe principal does not care longer to repose trust in tbe agent, tbe law will not compel bim to do so.” It was competent for tbe defendants to prescribe a limit upon tbe time during which plaintiff’s employment might continue, and, upon bis failure to meet tbe requirements thus imposed, bis agency terminated automatically at noon on November 1, 1911. Tbe record is barren of anything to indicate recall of tbe revocation. Tbe letter of December 21, 1911, informed tbe plaintiff of a sale of a portion of tbe personal property, and that tbe land and remaining stock were still for sale, but to tbe first purchaser who appeared, willing to pay tbe price. Tbe attempt by plaintiff later to secure an option, and tbe failure upon tbe part of himself and tbe defendants to agree upon terms, indicate further that no contract relationship then existed between them. But, even if there was a recognition of some sort of authority in plaintiff, it was distinctly repudiated and withdrawn by tbe letter of May 28, 1912. This letter was received by plaintiff on tbe same day and before Mr. King bad examined tbe property.
In excluding plaintiff’s reply to defendants’ letter of September 25, 1911, and the offered oral evidence as to the time and money expended in the pursuit of his employment the trial court did not err. The offered letter does not contain an acceptance of defendants’ offer; but, even if it did, its exclusion would only amount to, error without prejudice. Plaintiff did accept the offer, and his acceptance was known to, and acquiesced in by, defendants, who treated him as their agent in their letter of October 26 following. The offered evidence of
Counsel for respondents insists that the evidence is insufficient to establish a valid contract existing between these parties at any time, or that the witness King was financially able to purchase the property. Whether the letter of September 25 and the correspondence which preceded it sufficiently identify the property is. a question which would deserve more serious consideration if it was necessarily involved. But we have assumed, without deciding, that the relationship of principal and agent was established, and that King was shown to be financially able to complete the purchase. It is upon this assumption that we base our conclusion that no error was committed by the trial court.
The judgment is affirmed.
Affirmed.