78 Mich. 318 | Mich. | 1889
Plaintiff sued defendant in assumpsit upon the following contract:
“ Chicago, Aug. 1, 1885.
“ This agreement, entered in and agreed to by James Donovan, of the first part, and John S. Ranney, of the second part.
“ That the said Donovan, in case of the sale of certain tracts of pine land in town 37 and 38, range 17 and 18, state of Wisconsin, is to pay the said John S. Ranney one-half of any price that may be obtained above one dollar and sixty-five cents per thousand ($1.65); the guaranty cut being 23,000,000 on the green tract and 25,000,000 on the red; the net price of the red tract to be forty-seven thousand dollars ($47,000). It is hereby mutually agreed that the said Donovan and Ranney shall share equally in all margins obtained above said price.
“ J. S. Ranney. [l. s.]
“ Jas. Donovan. [l. s.]
“ Ghicago, Aug. 1, 1885."
The following facts were shown by plaintiff: In the year 1885, Sawyer, Goodman & Co., of Chicago, were the owners of a tract of pine land containing 2,240 acres, and
“If you can find a purchaser for these lands we will divide.”
Subsequently, Phinney, Ranney, and O’Callahan, as the two former testify, made an agreement to share the profits on these two tracts of land together with a fourth person. O’Callahan denies that he was a party to any such arrangement. Phinney and Ranney agree that they fixed the price of the lands to be sold by them at $1.65 per 1,000, and they were to divide the difference between $77,800 and the sum they should realize from the sale at $1.65 per 1,000 among the four.
Ranney made the contract with Donovan without the knowledge or consent of Phinney or the others. Ranney
Ranney claims that he ig entitled in this suit to one-fourth of the difference between $44,800 and $47,000, to' wit, $550. Donovan sold this tract for $50,000, or at $3,000 advance, one-half of which profit Ranney also claims, making in all, upon the Goodman tract, the sum of $2,050.
In relation to the Boeing tract, and the sale thereof, the plaintiff knows nothing, except by hearsay. Phinney, who testifies for plaintiff, and O’Oallahan, who was a witness for defendant, tell different stories of the transaction. Phinney testifies that after Donovan wanted the' lands he wrote to O’Callahan, who lived at Hancock, Michigan, ■ and who, in response to his letter, came to Chicago. Ranney, Phinney, and O’Callahan met in Chicago. Donovan was also present. It was there agreed that Donovan and O’Oallahan should go to Detroit, and close the matter up with Boeing. The testimony of Phinney and plaintiff tends to show that this land was to be taken by Donovan in the same way as the Goodman tract; the difference between the amount realized at $1.65 per 1,000 and $33,000 to be divided between Phinney, plaintiff, O’Callahan, and another. O’Callahan testifies that he knew nothing of Ranney in this transaction; that he received a letter from Donovan, and went to Chicago upon its receipt; that at this time his option on the
Plaintiff’s claims sum up as follows:
One-fourth of commission on Goodman tract......$ 550 00
One-half Donovan’s profits........................ 1,500 00
One-fourth commission Boeing tract............... 536 25
One-half Donovan’s profits........................ 3,727 50
§6,313 75
He recovered judgment for $7,352.15. The defendant admitted making the contract, as above set forth, with plaintiff, but claims that Ranney represented to him that he held the option for these lands direct from the owners. He supposed that the only commission Ranney was to receive was the half he would get under this contract, which he understood Ranney would have to divide with three others. After the contract was made, defendant testifies that Ranney introduced him to Phinney. He asked Phinney if he was the owner, and he said he was not. Defendant then and there told plaintiff that he repudiated the contract. He thereafter acted with
We think error was committed by the court below in submitting to the jury plaintiff’s claim for one-fourth of the commissions paid to Phinney and O’Oallahan. It plainly appears from plaintiff’s own showing that Phinney acted for plaintiff and the other brokers, with whom he was to divide the commission in this sale from Sawyer, Goodman & Co. to Donovan, and Donovan was justified in paying the commission to Phinney. Plaintiff and the other brokers must look to Phinney for their share, and not to defendant. The same principle applies to the Boeing tract, but with greater force, under the testimony, as it is doubtful if plaintiff had any claim upon the commission in that sale. If he has any such claim, he must look to O’Callahan, and not to defendant. This disposes of $1,086.25. of plaintiff’s claim; and the court should have so instructed the jury, as requested by defendant’s counsel. There was no testimony tending to show that Donovan ever agreed to pay this one-fourth, in either
There were no errors in the admission of testimony. It was competent for plaintiff to show that he had a verbal option to sell these lands, as .between him and the defendant. No question arises in this case as to the enforcement of a conveyance under this option. The land was conveyed; and the plaintiff had the right to show that he was verbally authorized by Phinney to sell the lands at a certain price, and that Phinney was authorized by the owners to sell at another price, as bearing on the questions involved in this case.
It was also proper for him to show that in a' conversation with Donovan the latter presented him with a receipt, and requested him to sign it in full, on payment of $1,086.25, which receipt he read, and handed back to Donovan, declining to take that amount, or to sign the receipt, and to state what the receipt contained, without producing the same, or giving notice to Donovan to produce it. The receipt was not executed, or relied upon as an executed paper. It was simply a part of the conversation, the same as if Donovan had read to him, or handed him to read, any other written or printed communication, and kept it, or received it back again into possession. Whart. Ev. § 1016. This testimony could not have hurt the defendant, any more than a statement by plaintiff that defendant asked such a receipt from plaintiff, without having one already prepared in writing. The defendant could deny the fact sworn to in either case, and his denial would be of equal force to meet plaintiff’s assertion.
Defendant’s counsel requested the court to direct a verdict in behalf of his client. This was properly refused. In regard to the Boeing tract, the testimony tending to
It is strenuously argued here that the contract between Ranney and Donovan was against public policy, and that this should have defeated plaintiff’s recovery; that the testimony shows that neither the owners of the land, nor Phinney or O’Callahan, knew of the contract between Ranney and Donovan; that Ranney was the agent of Phinney for the sale of these lands, and was getting both a commission from the seller and the buyer; and that he was neglecting his duty to his principal, Phinney, when he undertook to gain additional compensation for. himself. The counsel for defendant cites the following cases-in support of his contention: Scribner v. Collar, 40 Mich. 375; Walker v. Osgood, 98 Mass. 348; Smith v. Townsend, 109 Id. 500; Rice v. Wood, 113 Id. 133; Lynch v. Fallon, 11 R. I. 311; Everhart v. Searle, 71 Penn. St. 256; Raisin v. Clark, 41 Md. 158; Morrison v. Thompson, L. R. 9 Q. B. 480; Oscanayan v. Arms Co., 103 U. S. 261.
These authorities, in my opinion, do not apply. In this case neither the buyers nor sellers of these lands were defrauded by the transaction, and they are not complaining. Both Sawyer, G-Qodman & Co. and Boeing had fixed the price upon'their lands before this contract was made, and had in effect agreed that the brokers Phinney and O’Oallahan could sell their lands at a certain price to them, without reference to what the brokers might get for the same from the buyers. Donovan, from his own showing, was a broker, and was buying these lands to sell again. The price at which he took them was also fixed when he made his contract; and he paid without question the difference between what he was to pay the
“It [the contract] conferred authority to negotiate, and reposed confidence, and contemplated that the plaintiffs should act in defendants’ interest, and should exert their judgment and their influence in their behalf.”
For this reason it was held that public policy would not admit of Scribner and Potter being in the employ of both parties.
In this case at bar, Ranney had no power to negotiate; and no confidence was reposed in him that he should use his best judgment and efforts to get a large price for the lands. All he was to do was to find a purchaser at a certain sum, fixed and agreed upon. "When he did this, he was entitled to all he could get out of the purchaser over and above such price. The owners of the land were not to pay him anything, and his compensation from Phinney depended upon the agreement made bétween them to sell the land at a fixed price above what the owners asked, and to share the profits together. Neither his efforts nor judgment were to be employed to get a greater price. It may be that there was such a copartnership or joint dealing between himself and Phinney as would entitle Phinney to share in his contract with .Donovan (see Grant v. Hardy, 33 Wis. 668); but this -could not affect his right to recover from Donovan. Donovan agreed to pay Ranney one-half of the profits made by him over and above a fixed sum, which Was ¡named, for each piece of land; and there was no fraud upon him in the transaction. He made the agreement with his eyes open; and it could make no difference to Ihim to whom he paid the purchase price, which was fixed by his contract. He does not complain of any fraud ■upon himself, but sets up the fraud of Ranney against
This is the case here. No confidence was reposed in Eanney, by anybody, that he would exert his skill or judgment to get as large a sum as possible for the lands, or, on the other hand, to procure the same for as low a price as possible. He was simply acting as a go-between, — a middleman, — to bring the buyer and seller together, to make their own bargain; the seller having fixed his price to start on. This was all he did. The fact that he received the right to act through or from another middleman, or turned the matter over into the hands of another broker, upon a contract with him to share half of the price obtained by such broker over and above the price fixed by him and Phinney as the selling price of the lands in their hands, does not render the transaction void as against public policy, and is no defense against the contract by Donovan. Stewart v. Mather, 32 Wis. 344; Hardy v. Stonebraker, 31 Id. 640.
We find no other errors in the record. For those noted the judgment must he reversed, and a new trial granted, with costs of this Court to defendant.