156 N.W. 1031 | N.D. | 1916
Defendant listed 800 acres of land for sale. Unfortunately, tbe contract was not reduced to writing, and there is a dispute not only as to tbe price and terms wbicb be desired, but tbe amount of commission wbicb be should pay. Plaintiff’s version is tbat first in 1909, again in January, 1910, at least once between January and June, and again on June 28, 1910, tbe subject of commissions was discussed. Tbat just prior to tbe sale itself when tbe contracts with tbe purchaser were awaiting signature, defendant promised to pay bis commission upon tbe sale actually made.
He testifies:
After be (Reeds) read this little statement there be say, “I can’t pay you a commission on tbat, Paulson.” “Well,” I says, “tbat is not to you.” Then be says, “What do you get for it — I suppose you get $20 an acre?” I said, “No, I don’t. I get ’$17.50.” He says, “All right,” and then be signs it. Tbat was all there was to it. . . .
Q. Now, Mr. Paulson, when these contracts were signed by Mr. Reeds and Mr. Huey in your office, I mean tbe contracts, exhibit “B” (by wbicb tbe land was sold), was there anything said between you and Mr. Reeds at tbat time about tbe payment of commissions, or what should become of tbe excess of tbe purchase price of these lands over $16 an acre?
A. Yes, sir.
Q. What was tbat ?
A. He said tbat I can’t pay your commissions out of these payments. “Well,” I said, “I will wait until tbe November 15th settlement is made for my commissions.”
Q. When did you have tbat talk, before or after tbe contract, exhibit “B” was signed?
A. Before.
Wyndmere, N. D., June 28, 1910.
Martin Paulson:
Ton are hereby authorized to sell my land, W|- SE-J 21, and E-|- of 20, 133-52, at $16 per acre net to me.
(Signed) J. A. Reeds.
It will be noticed that this merely authorizes a sale of the land at $16 per acre, but does not mention the matter of commissions, we having already held in Louva v. Worden, 30 N. D. 401, 152 N. W. 689, that using the word “net” does not amount to a contract to pay all of the purchase price over the net to the agent. The jury found for plaintiff in the full sum demanded, $1,200. No motion for a new trial was made, and the matter is before us upon assignments of error. The trial below occurred before the Louva v. Worden, supra, and Harris v. Van Vranken, — N. D. —, 155 N. W. 65, opinions were handed down by this court. Many of the questions raised in the briefs have' been decided by those two cases, and will not be further discussed. Plaintiff brings this action upon an express contract alleging that he produced a purchaser able, willing, and ready to buy upon the listing’ terms. That the land was actually sold upon those terms. That under
Much of the charge given is correct, but we cannot escape the fact that the court understood the signing of exhibit “A” to settle the question of commission at $1.50 per acre. In this there was error. Much has been written upon the subject of brokers’ and real estate agents’ commissions. Valuable notes will be found in 21 L.R.A.(N.S.) 935; 29 L.R.A.(N.S.) 533; 34 L.R.A.(N.S.)1050; and 139 Am. St. Rep. 225; 2 Hill’s Dakota Dig. pp. 174-177. There is nothing unusual
The second case is Knowles v. Harvey, 10 Colo. App. 9, 52 Pac. 46. Again we quote from the syllabus, italicizing the portions we wish to emphasize: “1. When a broker in whose hands property has been placed to exchange, finds a person who is willing to trade on the first party’s proposition, and he brings the parties together, with the result that a trade is made, though on somewhat different terms than in the original proposition, he earns a commission.”
The third case cited, Magill v. Stoddard, 70 Wis. 15, 35 N. W. 346, is to the same effect. Paragraph 2 of the syllabus reads: “Plaintiffs, real estate agents, agreed for a certain per cent on the price, to procure a purchaser for defendant’s land. The evidence showed that plaintiffs procured a purchaser for the land on the terms agreed upon, and that defendant then refused to sell but wanted a higher price. Held, that the evidence warranted a verdict for plaintiffs for the agreed compensation.” From the body of the opinion we quote: “There was evidence that the parties made another contract in November, following.
In Welch v. Young, — Iowa, —, 79 N. W. 59, it is said: “There is no doubt that Mr. Bennett was able, willing, and anxious to perform the contract on his part; but it appears that the defendants were unable to furnish an abstract of clear title at that time, wherefore the contract was not performed.” In the syllabus it is said: “An agent employed to effect a sale of land is entitled to compensation where he obtains a person who executes a contract with the owner, and is able, anxious and willing to perform, but, because of the owner’s inability to furnish a sufficient abstract of title, the sale is not consummated.” It is therefore apparent, first, that Ward v. McQueen is subject to the criticism above mentioned. The conclusion is right, though part of the reason is wrong. The correct rule is stated by this court in Anderson v. Johnson, 16 N. D. 174, 112 N. W. 139, where it is said: “It seems to have been the theory of plaintiff’s counsel and also the trial judge that all it was necessary for them to prove in order to recover was the existence of the contract as pleaded, and that they produced the person claiming to own the property, and he, in fact, entered into a contract with defendant to sell the same to him upon some terms acceptable to defendant. In other words, even though Staiger was unwilling and refused to sell at the price of $2,300 [the listing contract] that, if defendant dealt with him on any other terms whatever, plaintiffs would still be entitled to their commission. . . . This is clearly erroneous.” In respondent’s brief and upon oral argument it was insisted that there were but two lines of authority, one being the “Minnesota rule.” We do not believe there is any distinction. Francis v. Baker, 45 Minn. 83, 47 N. W. 452, cited by respondent in support of this theory, contains the following language: “Where a person agrees with a real estate broker to pay him a commission, if he procures a purchaser for his property on specified terms, the broker, in order to entitle him to his commission, is bound to present a purchaser who is ready, able, and willing to buy on the proposed terms.”
And Ketcham v. Axelson, 160 Iowa, 456, 142 N. W. 62, also cited
It will thus be seen that the only objection to the charge given in this case is the interjection of the paragraph by reference to exhibit “A.” If this unfortunate reference had been omitted, there could be no criticism of the charge. It is undoubtedly correct, as stated by the trial court, that if a dispute existed as to that part of the listing contract having reference to the terms upon which the land should be sold, and pending this dispute exhibit “B” was produced and shown to Beeds as plaintiff’s version of the listing contract, and Beeds then accepted the same, it would probably be presumed that he had receded from his position upon the contract, and had accepted the version contended for by plaintiff. In such a case he would be liable for some commission, either $1,200 as claimed by plaintiff, or $100 as claimed by himself, but there would still be a dispute upon this proposition. The trial court evidently considered the signing of exhibit “A” a conclusion of this dispute, and instructed the jury that if Beeds signed exhibits “A” and “B” he would owe the $1,200 commission. Herein lies the error. Exhibit “A,” as we have already shown, does not refer to commissions at all, and this question should have been submitted to the jury upon the oral testimony. Eor this error a new trial must be had.
2. Shortly after the completion of the sale to Huey, defendant wrote a letter to a banker in Wyndmere, inclosing a check for $600 payable to Paulson, and stating that this was all that he owed him, and asking the banker to pay the same to Paulson and report to him what Paulson said. The letter has the appearance of having been first written $1,000 and the 6 written over the 10. This letter was properly admitted as a declaration against interest.
3. While defendant was being cross-examined he was asked whether he had not attempted to have plaintiff arrested because he had sent him a dunning letter regarding this commission. Defendant was not
There are other assignments of error, but we do not believe they will arise upon a second trial of tbe action. Judgment is reversed and a new trial ordered.