189 P. 681 | Nev. | 1920
Lead Opinion
By the Court,
This action was originally brought in the court below to recover the sum of $2,000 as damages for the breach of a written contract. The complaint was amended prior to the trial, and during the progress of the trial, and before the conclusion of his case, respondent, by leave of the court, again amended his complaint by including a count on quantum meruit. The trial of the
The second amended complaint restates the cause of action set forth in the first amended complaint. It alleges the written contract as follows:
“This contract for the purchase and sale of real estate, made by and between L. Avansino, of Washoe County, Nevada, party of the first part, and John G. Ramezzano, of the same place, party of the second part, witnesseth:
“That for and in consideration of the sum of one dollar, in hand paid to the party of the first part by the party of the second part, the receipt whereof is hereby acknowledged, the party of the first part hereby gives and grants to and unto the party of the second part the exclusive option for a period of sixty days (60) from the date hereof and no longer, to purchase of and from the party of the first part, or to sell on his behalf the ranch of the party of the first part commonly known as the ‘Kelly Ranch,’ formerly owned by one Questa, and consisting of 183 acres, more or less, with the appurtenant water right thereto of 120 shares in the Orr Ditch and a certain interest said to be a one-half interest in the Kelly-O’Sullivan Ditch, for the full purchase price net to the party of the first part, without deduction, of $38,000 cash, and also interest on $26,000 at seven (7) per cent from December 15, 1916, to the date of sale hereunder, and also any and all reasonable expenditures from this date to the date of sale that the party of the first part may lay out or may incur for necessary labor and seeding said real property prior, to the time of said sale.
“It is especially provided that no commission shall- be paid to the party of the second part or claimed by him hereunder for any sale made by him or his assigns, and that the title to said real property shall be delivered*77 free and clear of any and all incumbrances thereon, and that a part of said purchase price, should one G. B. Questa who is now secured by a mortgage of $26,000 at seven per cent on said real property not accept payment of his said mortgage at the time of said sale, shall be the said mortgage which the purchaser will assume and agree to pay at its face, namely, $26,000, with interest at seven per cent per annum, and the balance of said purchase price, $12,000, together with the additions aforesaid, shall be paid to the party of the first part without deduction as aforesaid, and should a sale be made hereunder, in addition to the real property aforesaid the following personal property now situated upon said real property shall be included as a part and parcel of said sale: 5 working horses, 2 Deering mowers, 1 hay rake, 1 binder, 2 hay wagons, 2 sulky plows, 1 walking plow, 1 straight-tooth harrow, 1 disc harrow, 1 marking plow, 1 four-horse scraper, 2 stretchers, 1 hay derrick complete, and 8 tons of hay.
“In witness whereof, the respective parties have hereunto affixed their hands and seals on this 14th day of February, 1917. In duplicate.
“L. Avansino.
“John G. Ramezzano.
“Witness:......
It is further alleged that, after the execution of the contract and before its expiration, respondent entered into negotiations with the Flanigan Realty Company, a corporation, for the sale of the property, at an advance of $2,000 over and above the amount fixed in said agreement; that the company examined the property and, being satisfied with it, was ready and willing and able to purchase it at an advance of $2,000 over the price fixed in the agreement, to wit, the sum of $40,000; that the company, at the request of respondent, entered into negotiations with appellant, and that appellant knew at such time that the company had been negotiating with respondent concerning the sale of the property, and that appellant, before the, expiration of the time fixed in the
The contract pleaded in the first cause of action is made a part of the second cause of action, and, in addition thereto, it is alleged therein that, immediately after the execution of the contract, respondent endeavored to secure a purchaser for the property, and informed numerous persons that he had an option to buy or sell the same, among whom were Yori and Flanigan, who, after being so informed by respondent and of the price, to wit, $40,000, entered into negotiations with the appellant on behalf of the company, which resulted in a contract and sale of the property, together with a small amount of personal property, to the company for the sum of $40,000; that said sale was the result of respondent’s negotiations, efforts, and services rendered
The appellant answered without waiving his objections and exceptions to the ruling of the court, allowing the filing of the amended complaint. The answer admits the execution of the written contract set forth in the amended complaint and denies all of the other material allegations mentioned therein.
As a further defense to each cause of action, it is alleged that at all times during the life of said agreement appellant was able, ready, and willing to permit the respondent to purchase or sell said property pursuant to the terms thereof, but respondent failed to comply with the terms of the contract during the life of the contract, or at all, and did not either purchase the said property or sell the same for and on behalf of the appellant as in said contract provided; that at no time during the life of the contract did respondent or the company offer to purchase said property; that subsequent to the expiration of the agreement the appellant entered into and consummated with the company a certain agreement whereby, as an independent transaction and under different terms from those set forth in the amended complaint, he sold said property to the company, together with certain personal property of the reasonable value of $3,000, for the purchase price of $40,000, less the amount of accrued interest then unpaid on the Questa mortgage mentioned in the contract set forth in the amended complaint, and that under said last-mentioned sale the appellant did not have or receive for the property described in the agreement set forth in the amended complaint the sum of $38,000 net to him as provided therein.
For a further defense to the causes of action alleged in the complaint, it is alleged in the answer that at the time of the execution of the contract between respondent and appellant, and that during all of the times as alleged in the amended complaint, respondent was carrying on the business of real - estate agent and solicitor
The answer also contains a demurrer to the second cause of action on the ground that it does not state facts sufficient to constitute a cause of action.
By stipulation of the attorneys for the parties in open court the affirmative allegations in the answer were deemed denied. . The demurrer was overruled by the court and a motion to dismiss the second cause of action on the same ground denied.
It is contended that the count on quantum meruit does not state a cause of action. We deem it unnecessary to pass upon this question. The evidence introduced by respondent warranted a recovery under the allegations of the amended complaint before its amendment during the trial. Notwithstanding the fact the court instructed the jury that the respondent was entitled to recover the reasonable value of his services, it appears that he did not abandon his cause of action for damages for the breach of the contract. He restated it in his first cause of action in the second amended complaint, and presented instructions to the court upon it which were given to the jury, and which properly stated the law upon this theory of the case.
The sufficiency of the second cause of action therefore need not be determined.
It is assigned as error that the evidence is insufficient to justify the verdict. In this respect it appears that after the time limited in the contract appellant made a sale of the real estate described therein, together with sixty-five head of cattle and other personal property, to the Flanigan Realty Company for the sum of $40,000. .
The contract executed by appellant, giving respondent the option to buy or sell the property described for a period of sixty days from the date of its execution, for the net price to appellant of $38,000 plus the interest on the Questa mortgage, and the reasonable expenditures paid out by appellant for labor and seeding, is undisputed. That the respondent was solely instrumental in causing the agents of the Flanigan Realty Company to open negotiations with the appellant is not controverted. That he interested them in the property to a considerable extent is clearly shown. In these respects the testimony of respondent is corroborated by the witnesses Yori and Flanigan, who were interested in and acting for the company. Respondent testified that he brought the property to the attention of Yori during the life of the contract and urged him to buy it at the price of $40,000; that he showed Yori the option he had on the property and told him he could deliver clear title to it and the live stock and implements included; that he called Yori’s attention to the fact that the land adjoined the ranch belonging to the company known as the English Mill Ranch, and that he believed by making some improvements on the property there was a chance to make good interest on the money invested; and that Yori told him he would have to see some of his associates and would go down some time and look at it. He also testified that he told Flanigan that he was thinking of selling the property to the packing company, and that he informed the appellant that he had taken up the
It appears from the testimony of both Yori and Flani-gan that it was through the respondent that they became interested in the property and commenced negotiations with appellant for its purchase. There is ample evidence upon which the jury could well base a belief that Yori and Flanigan, as representatives of the Flanigan Realty Company, were ready, willing, and able to buy the property described in the Ramezzano • contract for $40,000, and would have done so if they had not been encouraged by the appellant to wait until the expiration of respondent’s contract for better terms. Flanigan testified that individually he would have been willing to pay that price had he not been able to buy it for a less sum, and that he considered it worth that amount of money. That they were anxious to acquire the property appears from the testimony. In this regard, Mr. Flani-gan, in answer to questions propounded by counsel for respondent, testified as follows:
“Q. For what reason were you anxious to get the contract closed at that time? A. Well, we had acquired the Rossaco property, what is known as the English Mill Ranch, and we believed that the acquisition of this property would materially advance the other, for the two were worth more as one large property than either would be alone, or separate.
“Q. Now, at this time, to refresh your recollection, I will ask you to state whether or not you were aware of the fact that other people were negotiating or looking toward the purchase of the Kelly ranch ? Yes, sir; I am.
“Q. And that is the reason you were so anxious to close? A. Yes.”
The jury by their verdict found against appellant’s claim of an agreement whereby, as an independent transaction and under different terms from those set forth in the second amended complaint, he sold said property to the Flanigan Realty Company, together with other personal property of the reasonable value of $3,000, for the purchase price of $40,000, less the amount of accrued interest then unpaid on the Questa mortgage, and therefore did not receive for the property described in the Ramezzano contract the sum of $38,000. Respondent had listed the property mentioned in his contract with appellant for sale to the agents of the Flanigan company for the sum of $40,000. The effect of appellant’s' action, in including in the sale made by him to the company different personal property of greater value than that mentioned in his prior contract with Ramezzano, was merely to reduce the price of the real estate sold which constituted the bulk of the property in question.
The jury was properly instructed in this regard. A careful consideration of the testimony brings us to a conclusion that a strong preponderance of the legitimate evidence supported the respondent’s claim and justified the verdict.
Appellant assigns as error the giving of plaintiff’s instruction No. 8, wherein the court instructed the jury as to the issues involved. The instruction reads:
“You are instructed that in this case John G. Ramez-zano, the plaintiff, has commenced an action in this court*85 against L. Avansino, the defendant, for the recovery of $2,000, and the plaintiff has set up as the basis of such recovery two causes of action. In the first cause of action he alleges a contract between plaintiff and defendant, which contract has been admitted and proven in evidence, and alleges that defendant violated the said contract, and prevented plaintiff from either buying the said property at the price named therein, to wit, $38,000, or selling the same at an advance thereover; ánd further alleges that, while said contract was in full force and effect, he, the said plaintiff, had secured and negotiated with persons who were ready, willing, and able to buy said property described in said contract for the sum of $40,000; that the defendant by his actions prevented plaintiff from making said sale.
“You are further instructed that, in plaintiff’s second cause of action, he sues for a commission in the amount of $2,000, alleging that, acting as a real - estate agent, he secured for the defendant a person ready, willing, and able to purchase the ranch and personal property of defendant, and that such person, to wit, the Flanigan Realty Company, so secured by him, the said plaintiff, did purchase said property for the sum of $40,000, and that a reasonable compensation for services so rendered in such sale is $2,000. To this complaint the defendant entered a general denial, except as to the making of said contract.”
It is apparent that this instruction does not fully state the issues made by the pleadings. The instruction ignores the affirmative defense of noncompliance on the part of respondent with the ordinance of the city of Reno requiring real-estate agents to obtain and pay for a license. It also incorrectly states the purchase price appellant was to receive net for the property at $38,000, whereas under the contract as pleaded in the complaint and admitted in the answer, he was to receive $38,000 plus the interest on the Questa mortgage and the amount of all reasonable expenditures from the date of contract
“You are instructed that.as a matter of law that, where an agreement for the sale of property is entered into, the agent is entitled to his recompense if he succeeds in bringing the owner and buyer together and this, too, where the owner in dealing personally with the buyer agrees to accept a less sum than that mentioned to the agent. In such case the agent is entitled to recover his compensation on the amount accepted by the seller.”
It is insisted that this instruction is not applicable to the case because the contract governs the compensation, unless the appellant prevented the respondent from complying with it; and that such prevention on his part was
In view of the submission of the case to the j ury upon the cause of action for damages for breach of contract, and since the verdict is justified by the strong preponderance of the evidence in this respect, we deem it unnecessary to decide the question raised by appellant’s objection to instructions given upon respondent’s right to recover upon a quantum, meruit in this kind of an action.
We have considered the other errors assigned, including the refusal of the court to give certain instructions offered by the appellant, which are not discussed in the appellant’s briefs, and find them to be without merit.
Judgment affirmed.
Rehearing
On Petition for Rehearing
Rehearing denied.
