95 Neb. 145 | Neb. | 1914
This action ivas brought to recover the sum of $317.66, which plaintiff alleges is the balance of the purchase money for 317.66 acres of land sold by him; that a portion of the purchase price was paid to defendant for plaintiff’s use, and that of the sum so paid the defendant retained the amount sued for.' Defendant claims the $317.66 as his commission as against plaintiff for the sale of the land. .
The contract between ihe parties, is made by correspondence.
On October 24, 1909, plaintiff, who lives in the state of Oregon, Avrote to defendant, Avho was a banker at Lyons, Nebraska, and Avho had looked after the renting- of plaintiff’s land for some years, telling-him to buy a steel windmill for the farm, and in a postscript said: “If Mr. Bengston don’t Avant to buy the place, you try and sell it. T want $115 an acre above commission, that is to sell it the next six months. I Avill give other agents a chance to sell it too. I looked my abstract over and it calls for this.
Sect. Tw. R. Amount of Acres.
3 ' 22 9 159 70-100
4 22 9 157 96-100
Nothing further occurred until January 18, 1910, when Piper found a purchaser for the farm and sent plaintiff the follOAving telegram: “Sold farm for one hundred fourteen dollars per acre. Wire your acceptance. John F. Piper.” On the same day he sent the plaintiff the following letter:' “I just wired you that I sold the farm for • one hundred fourteen dollars per acre, net to you. Wire
About the 18th of February the defendant received a letter from Mr. Pottratz, inclosing two abstracts of title and returning the duplicate contract signed and acknowledged. In this letter Mr. Pottratz calls attention to the fact that the land contained 1.92 acres more than specified in the contracts; that he had corrected the contracts, stating that he claimed $220.80 inore on account of this shortage, and said further: “If the prospective purchaser, Mr. Burmester, is agreeable to this, well and good, the sale can be closed, but, if not, please let me know at once and I will return the draft of $1,000 that you sent me. * * * If Mr. Burmester is not agreeable to this, you may consider this sale with him as off and return to me my contracts.” Burmester agreed to the changed contract, paid the remainder of the money then due to Piper,
In the undelivered letter Pottratz says: “In answer to your telegram of Jan. 18 as to whether I will accept $114 per acre for my farm land in Nebraska, will say that in one of my letters to you I wrote that I would take $115 per acre above commission, which means that I want $115 net per acre to me.” Piper making no reply to this letter, plaintiff brought this action. After the evidence was taken, each party moved for a directed verdict. The court was about to instruct, when plaintiff asked leave to withdraw his motion. This request was denied, and the court directed a verdict for defendant. Judgment was rendered accordingly, and plaintiff appeals.
The principal contention of plaintiff is that the correspondence does not create a binding contract under the provisions of section 2628, Rev. St. 1913; that before the plaintiff is entitled to recover he must show a written contract subscribed by the parties, wherein is set forth the compensation to be allowed by the owner in case of sale by the agent.
Taking all the correspondence together, we think it comes within the statute. Bradley & Co. v. Bower, 5 Neb. (Unof.) 542; Holliday v. McWilliams, 76 Neb. 324. Section 7909, Rev. St. 1913, provides: “When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” Applying this principle, what is the condition in this case? In the first place Piper was authorized to sell the farm by the letter of October 24 for $115 an acre above
Plaintiff complains of the admission of oral testimony as to the contents of another letter which Piper testified he had received in October, 1909, and also complains that he was not permitted to withdraw his request for a directed verdict and allow the case to go to thé jury. These
The judgment of the district court is
Affirmed.