129 Va. 466 | Va. | 1921
Lead Opinion
delivered the opinion of the court.
This case is brought before us by a writ of error to the judgment of the Circuit Court of Nottoway county. The controversy relates to certain commissions alleged to be due by J. W. Burcum to the Realty Company of Virginia, plaintiff in error.
J. W. Burcum, the defendant in error, owned a farm near Nottoway Court House, Virginia. In December, 1915, he placed this farm, Blendon, containing about 120 acres, in the hands of the Realty Company of Virginia, for sale. At the same time he signed a written contract of agency containing various agreements with the Realty Company. The Realty Company thereupon included this farm in its advertising matter which they distributed through the mails. In the year 1917, W. G. Dick and wife, of Ohio, having seen various advertisements of Southside Virginia, including the catalogue of the Realty Company, which at
The case was tried several times, resulting in hung juries. On the last trial the jury found for the defendant. The plaintiff moved to set aside this verdict, on the ground that it was contrary to the evidence, and for misdirection of the jury. This motion the court overruled. Thereupon, the plaintiff applied for and obtained a writ of error from one of the judges of this court.
The plaintiff in error makes five assignments of error, as follows:
1. The court erred in giving the instruction which was given because the same was mandatory, and required the jury to find a verdict for defendant.
2. Because the court refused to give the nine instructions, or any one of them, asked for by petitioner.
3. Because the court failed to give any instructions presenting petitioner’s theory of the case.
5. Because of misdirection of the jury.
In that very case the court said: “The statute against peremptory instructions is not to be construed * * * as reinstating the scintilla doctrine, formerly prevailing in this State * * *.
“The duty and power of deciding finally whether there is evidence sufficient to take a case to the jury must reside somewhere, and, under the law as it now prevails, this duty and power rests upon this court.” 125 Va. p. 427, 99 S. E. 527, 528.
In the case in judgment the court gave one instruction, which in effect was an interpretation of the contract, and refused, as appears from the record, to give any other or further instructions. Plaintiff in error complains that this instruction was peremptory, or mandatory, and therefore erroneous.
This brings us to the consideration of the instruction complained of, the provision of the contract relied upon, and the evidence supposed to entitle the plaintiff to recover.
The clause of the contract upon which the plaintiff in error (plaintiff below) relies, is clause 8, as follows: “Should said property be sold to anyone with whom the Realty Company of Virginia, Inc., has negotiated for the sale thereof, or to whose attention it has directly brought the property, I agree to pay to said Realty Company of Virginia, Inc., the said commission above mentioned.”
The instruction given by the court is in the following terms: “The court instructs the jury that although they believe from the evidence that E. L. Denton, agent for the Realty Company of Virginia, did have' a written contract as shown to the jury, and did take Mr. and Mrs. W. C. Dick by the Burcum farm in showing him farms in the county of Nottoway that he had listed for sale, and did state in driving past said farm, that there was a farm with
The words to be construed are the following: “Should said property be sold to anyone with whom the Realty Company of Virginia, Inc., has negotiated for the sale thereof, or to whose attention it has directly brought the property, I agree to pay to said Realty Company of Virginia Inc., the said commission above mentioned.”
Section nine should also be considered in this connection. This section retains a right of sale in Burcum as follows: “I reserve the right to sell, or to employ others to sell, said - property without any compensation to said Realty Company of Virginia.”
The plain meaning of the two sections is, that the defendnat was free to sell his property without liability to the Realty Company, unless with respect to the sale subsequently effected the latter’s initial activities had proceeded to such an extent that they were really the “procuring cause” of that sale. Hence, Burcum’s inquiry of the Dicks whether they were under any obligation to the Realty Company. But their answer in the negative would not relieve Burcum from liability, if as a matter of fact, as alleged in plaintiff in error’s petition, the Realty Company was the “procuring cause” of the sale to Dick.
It appears from the evidence of Denton that on the day on which Denton took the Dicks to see the Lewis farm near Jenning’s Ordinary, “he called their attention on the return trip to the Burcum place, and as they were coming into the village of Nottoway Court House, and just about to pass the Burcum place, he slowed down his car, pointed out the
“While they were passing, Mr. Dick stated that if he owned the place he would cut the hedge from around it. Upon asking whether they wanted to see the property, Mrs. Dick said no, that she preferred to see the Dillemuth place, formerly owned by Governor Mann, and as it was late in' the afternoon, and they had only time enough to see one place, they would look at that.”'
The party thereupon proceeded to the Dillemuth place, looked it over, secured Mrs. Dillemuth’s price on same, and “agreed to return next morning and look at it further.”
The witnesses, Graham and Keller, confirm the above statements of the witness Denton. In addition, one of them states that Denton said the price on the property was-$9,000, and the other adds that he was absolutely certain that Mr. and Mrs. Dick heard what Mr. Denton said to' them.
The above was the sole interview between the Dicks and Denton relating to the “Blendon” property. Indeed he did not see them again in reference to any other property, for they did not return the next morning to look at the -Dillemuth place. If the above recited occurrences do not support the Realty Company’s claim for commissions, then
We do not find any error in the instruction given by the court, or in its refusal to give further instructions. The verdict of the jury was proper and should not have been set aside.
We affirm the judgment of the trial court.
Affirmed.
Dissenting Opinion
dissenting.
I concur in what is said in the majority opinion in regard to the duty of the court to construe the contract; and also in the holding that the instruction given by the court is not
It is true that under the instruction the jury were left free to consider any other evidence there may have been in the case of other action of the Realty Company or its agent, Denton, tending to cause or bring about the sale to Dick, besides that set forth in the instruction. But that is immaterial as there was in fact no such other action, and no evidence was introduced by the Realty Company tending to show any such further action, and it was not claimed in the court below, nor is it claimed before us by the Realty Company that there was any such further action. There was no such issue made in the case. The instruction was, therefore, as I think, misleading for the very reason that it did instruct the jury, in substance, that they were free to consider such other evidence. It erroneously diverted the attention of the jury to an issue not in the case, and as to which there was no evidence before them. This was in itself error.
The issue in the case was whether what the Realty Company did prior to the occasion when Denton took the parties to the farm, and on that occasion, “directly brought the” (Burcum) “property * * * to (the) attention” of Dick.
The instruction in question', in effect, stated to the jury that they could not, upon that issue, consider any other evidence than that set forth and alluded to in the instruction, and in so doing the instruction excluded from the consideration of the jury the following evidence for the Realty Company, viz:
There is of such evidence the following in the record, viz:
(a) ' The testimony of Keller “that he was absolutely certain that Mr. and Mrs. Dick heard what Mr. Denton said to them.” (Record, p. 31.)
(b) The direct testimony of Denton to the effect that his action, which is set forth in the instruction, in fact called the attention of Dick and wife to the Burcum place. (Record, p. 22.)
(c) The further testimony of Denton as follows: “The next morning * * * Mr. Dick came by to see him and said he was going to Nottoway to look at a farm containing about 120 acres; that witness told him ‘that must be the Burcum place with the hedge around it,’ and Mr. Dick agreed it must be.” (Record, p. 22.)
(d) The testimony of Denton that when Dick’s attention was called to the hedge the evening before, “Mr. Dick stated that if he owned the place he would cut the hedge down from around it.” (Record, p. 22.)
(e) The letter of Mr. and Mrs. Dick, of date October 16, 1917, to Denton, in which they say that before leaving Virginia “we did not see what we wanted.” (Record, p. 28.)
(f) The other testimony of defendant, Burcum, introduced in the attempt to show that the sale to Dick was not made until February, 1918; whereas, it appears from the admissions of both Mr. and Mrs. Dick, witnesses for'the
(g) The admission of Dick, on cross-examination, that on the day last named “Mr. Burcum told him that the farm was listed at $10,000, but that he, Burcum, had saved the witness $1,000; that Burcum asked him if Denton had not shown him properties in the county, and he told him he had, and that Burcum told him to keep it from Denton, that it would cost him $1,000 if Denton found it out, and not to let Denton know anything about it; that he did keep it away from Mr. Denton, and tried not to let him know anything about it, but that Denton found it out anyway.” (Record, p. 35.)
(h) The admission of Mrs. Dick, on cross-examination, “that when they were talking to Mr. Burcum about buying the property, he told them it was listed with real estate agents for $10,000; that if they bought direct from him it would save them $1,000, and told Mr. Dick not to let Mr. Denton know anything about their transaction, that if he did it would cost $1,000.”
(i) The statement of Burcum in his testimony in his own behalf, on examination-in-chief, that “he did not recollect telling Mr. and Mrs. Dick not to tell Mr. Denton about his negotiations with them * * * Mr. Dick * * * entered into no negotiations while here” (in 1917); “that they had not sold their farm in Ohio; in February, Mr. Dick came back * * *; that he wanted an abstract, etc.; that everything was closed up on the 19th of February.” That on cross-examination this witness “denied telling Mr. and Mrs. Dick to keep the matter secret from Mr. Denton.”
(j) Other conflicts between the testimony of Denton and that of Dick and Burcum. (Record, p. 34, 35, 36, 24.)