96 Kan. 109 | Kan. | 1915
The opinion of the court was delivered by
This was an action by The Putnam Investment Company, a corporation engaged in the real-estate brokerage business, against H. C. King for the recovery of a commission. From a judgment in favor of the plaintiff King appeals.
The case has been here twice before (Putnam v. King, 82 Kan. 216, 107 Pac. 559; 87 Kan. 842, 126 Pac. 1093), and in the former of these appeals the principal facts involved are con
It is first insisted that the plaintiff can not recover because the contract made by plaintiff in behalf of defendant included the sale of government land. It sufficiently appears that no one contemplated a sale or purchase of public land. When the contract was made between plaintiff and defendant it was mentioned that 2720 acres was subject to sale and that 160 acres used in connection with the larger tract was. government land upon which the defendant’s son had a filing. Of course, any attempt to sell or mortgage government land is contrary to statute as well as public policy and would be without effect. While this quarter section of land was spoken of as a part of the ranch it was understood that it was government land and therefore not subject to sale. It was equally well known that improvements as well as certain preferences of one having a filing upon government land were subject to be transferred. It has been said that:
“Under the laws of the United States, and the rules of the land department, the- entryman is entitled to commutation in several forms, and to certain preference rights, and may also relinquish and sell his improvements and equities in the.homestead to another. The relinquishment must, of course, be made to the United States; but under the rules and practice of the land department it may be made so as to fully protect the transferee, if he be a qualified person, to the same right which his vendor enjoyed.” (B. K. & S. W. Rld. Co. v. Johnson, 38 Kan. 142, 151, 16 Pac. 125; James S. Moore v. Daniel M. McIntosh, 6 Kan. 39; Bell v. Parks, 18 Kan. 152; Lapham v. Head, 21 Kan. 332; Hardesty v. Service, 45 Kan. 614, 26 Pac. 29.)
There was some talk between the parties about the son perfecting his title or giving a relinquishment if it was not per
The next contention of the defendant is that the plaintiff did not procure a purchaser for the land who was ready and willing to buy on the terms agreed upon. There is no substantial dispute that the plaintiff was empowered by defendant to find a purchaser for the land and very little as to the terms of the agreement made between them when the land was listed with plaintiff. The defendant prescribed several plans on which a sale might be made, one of which was that if sold for cash he would take $8000 net, the plaintiff to have any additional sum that it could procure as commission. In a letter written about four months later the defendant repeated the statement and said to the plaintiff, “You can have all you get over $8000.” The plaintiff found a purchaser who offered to pay $10,800 for the land, and who then made a payment of $1000 to the plaintiff as the agent of the defendant. When the defendant was notified that a purchaser had been procured on
“It is not becoming in him to place his refusal on one ground, and, when the plaintiff has been driven into litigation to enforce the contract, to defend his refusal on another and wholly different ground.” (p. 171.)
In a later case it was said:
“If this had been a reason for refusing to complete the sale he should have so stated at the time, so that the other party might know what was lacking and possibly correct it.” (Stanton v. Barnes, 72 Kan. 541, 544, 84 Pac. 116.)
Aside from this consideration it appears that the furnishing of an abstract of title was not insisted on by the plaintiff or the purchaser. In a letter of plaintiff notifying defendant of the sale it was said that the purchaser was ready to close the sale as soon as abstracts showing clear title were received, and in another letter defendant was requested to “forward abstracts of this land for examination and advise us when you will be here to close sale.” In his replies to these letters defendant never mentioned this detail of the transaction, and the plaintiff advised the purchaser that if defendant did not fur-.
Neither was there any basis for his refusal to complete the sale because of the form of the deed conveying defendant’s interest in the land. This defense was an afterthought. In none of his letters did the defendant speak of the'kind of a conveyance that was to be made of his land, and there was no stipulation on this subject in the agreement under which the land was listed for sale with plaintiff. While no mention was made as to the form of conveyance to be executed" it has been held that:
“In the sale of real estate it is not necessary in this state that the form of deed be contracted for. In the absence of express stipulations covering the subject a deed with the usual covenants of warranty is implied.” (Dewey v. Hines, 87 Kan. 834, syl. ¶ 1, 126 Pac. 1093; 39 Cyc. 1556.)
Although a warranty deed was mentioned in the writing made with the purchaser by plaintiff this memorandum was recognized by both plaintiff and purchaser to be invalid and was not even presented to defendant. It was understood throughout the dealings that defendant did not have a complete title to all of the land as part of it was held under a contract with the railroad company, and also that a quarter section of the same was government land upon which defendant’s son had a filing. In one of plaintiff’s letters to the defendant it was stated that the purchaser would take assignments of railroad contracts under which defendant held a part of the land. The purchaser was, however, ready to take the title which defendant had represented that he held when the land was listed for sale with the plaintiff, and, besides, the defendant did not misunderstand the agreement nor the disposition or ability of the purchaser to take the land on the agreed terms.
It is true that plaintiff did not have the exclusive right to sell the land and that if defendant had made a sale of the land before the plaintiff had found a purchaser the defendant would not have been liable to pay a commission to plaintiff, but it is conceded that he never effected a sale of the land. He speaks of having given an option of purchase to some one, but he admitted that the option had expired before the correspondence
We find nothing material in the objections to the rulings on the admission of testimony nor in the instructions of the trial court. , .
. The judgment is affirmed.