3 S.D. 486 | S.D. | 1893
John R. Clark, the original defendant, in his lifetime, and before the bringing of this suit, was a resident of the city of Lincoln, in the state of Nebraska, and was the owner in fee of certain lots situated in Rapid City, S. D. Some time during the early part of February, 1890, these lots were sold by said Clark to one Henry W. Tate for the sum of $25,000. The plaintiffs in the above-entitled action claim and allege that they were real-estate agents and brokers, located at Rapid City at the time,
The assignment of errors raises two questions for determination: First. Do the facts disclosed by the evidence show an employment of the plaintiffs by the defendant? Second. Was .a sale of the property effected by them in accordance with the conditions and terms imposed by the defendant?
To the first proposition, the answer of the defendant virtually admits that there was an employment of the plaintiffs, which extended up to the 25th day of January, 1890, but that, as they failed to comply with ,.the terms and conditions of such employment, their services were dispensed with. The examination of the abstract will therefore be confined to the question of the subsequent transactions of the parties, to ascertain if there is any evidence to support the finding of the jury. The abstract shows that the plaintiffs and defendant were not personally acquainted, and the negotiation in relation to the sale .of these lots was principally carried on by letters and telegrams; so that there can be but little dispute as to the primary facts. From the letters and telegrams produced at the trial it appears that Clark, the de
We think the rule is well settled that an agent or broker, when duly employed as such, is entitled to his commission when he has procured a party ready, able, and willing to purchase upon the owner’s' terms, although the agent has not made a binding contract of sale with such purchaser. McLaughlin v. Wheeler, (S. D.) 47 N. W. Rep. 816; Buckingham v. Harris, 10 Colo. 455; Doty v. Miller, 43 Barb. 529; Delaplaine v. Turnley, 44 Wis. 31; Moses v. Bierling, 31 N. Y. 462; Hart v. Hoffman, 44 How. Pr. 168. The reason of the rule is based upon the fact that the agent, being the procuring cause of the sale, is always entitled to his commission.