103 Kan. 458 | Kan. | 1918
The opinion of the court was delivered by
L. F. Schuhmacher sued J. C. Lebeck, asking-the specific performance of a contract which he alleged existed for the sale to him by the defendant of a quarter section of land. A demurrer to his petition was sustained, and he appeals.
The facts as set out in the pleadings were: The plaintiff wrote to the défendant inquiring the lowest cash price for which he would sell the land. An answer was received saying:
“You know all about my land locations and all so $2,500.00 $1,000.00 down & the rest $1,500.00 at 6 percent for 5 years if the party wants it that way you make your commission from the buyer. I have listed my place with other real estate men all with the same terms. Cash in hand for $2,000.00.”
A few weeks later the plaintiff sent the defendant a telegram reading:
“Have sold your quarter for $2,000.00 cash net to you. Letter will follow.”
The plaintiff contends that the letter amounted to an offer to the public at large, which would result in a contract whenever any one accepted it. We do not regard it as open to this interpretation. The plaintiff was given no authority to bind the defendant to sell the land to any one. If he had produced a buyer, say at $2,100 cash, the defendant could doubtless have been required to pay him a commission of $100 (Culbertson v. Sheridan, 93 Kan. 268, 144 Pac. 268), but could not have been compelled to part with the property. (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; 17 L. R. A., n. s., 210.) As the plaintiff could not by any act of his commit the defendant to a sale to some one else, he could not, by representing that he had attempted to do so, create a condition under which he could compel a conveyance to himself.
It may be doubted whether in the present case the defend
The following text may seem open to a construction militating against this view:
“The mere fact that a broker is authorized to purchase or sell a particular piece of property at a specified price, does not work an exception to the rule, for even under such circumstances a broker is expected to make an honest endeavor to obtain the most advantageous terms possible for his employer. A distinction is drawn, however, between such a case and an employment by which the broker is to receive as his compensation all that he can secure above a fixed price net to the vendor, there being nothing in an agency of the latter character to cause the broker to refrain from himself purchasing at the price set by his employer and subsequently selling at an advance to a third person, for by the terms of his employment he would be entitled to süch advance even if the sale had been made direct.” (4 E. C. L. 277.)
In the case upon which the second sentence of this quotation is based (Merriam v. Johnson, 86 Minn. 61), the owner of a tract of land sued his agent, to whom he had made a net price, for the profit he had obtained by buying it himself and at once reselling it.' A verdict was directed for the plaintiff. The ruling was reversed on the ground that “the trial court should have submitted the question of fact to the jury whether the
“In view of a new trial, we have referred to the correspondence in detail, since it is upon that appellant relies, and we unhesitatingly hold that, if those letters constituted the only communication between the parties heretd, they conclusively prove that appellant employed respondent to sell the land for him at the best price obtainable by him, with his experience and ability as a real-estate agent; that his compensation for such services was to be a reasonable commission to be paid by the purchaser; that appellant deeded his property to Cousins upon the supposition that he was the purchaser in fact, not knowing that respondent was buying the land himself, and even before so doing had sold it at an advance of $6 an acre.” (p. 66.)
The first headnote in the official report of the case reads:
“A real estate agent, who induces the owner to fix a .net price upon certain property, upon the supposition that a sale is to be made to a third party, cannot himself purchase the property and by such transaction, in any event, realize a greater profit than a reasonable commission in addition to the net priee.” (syl. ¶ 1.)
The following cases, while not passing directly upon the exact question now under consideration, tend to support the decision we have announced. (O’Meara v. Lawrence, 159 Iowa, 448; Payne v. Beard, 247 Fed. 247; Foss Investment Co. v. Ater, 49 Wash. 446.)
The judgment is affirmed.