105 Neb. 282 | Neb. | 1920
Louis C. Staats brought this action to recover $800 for the breach by the defendant landowner of a real estate
Trial was had to court and jury. At the "close of plaintiff’s evidence, the defendant moved the court to direct a verdict in his favor of no cause of action. The court overruled this motion, and, in doing so, stated to defendant’s ■ counsel that, if the case were submitted on the evidence then received, and the defendant would rest his case, the court would render judgment in favor of the plaintiff for $56 only. Thereupon the defendant rested his case, and the court directed a verdict in favor of plaintiff for $56, and both parties excepted to the ruling. Each party filed a motion for a new trial, and both motions were overruled. Each party excepted to the ruling, and was allowed the usual time in which to prepare and serve a bill of exceptions. Plaintiff appeals, and asks that judgment be rendered in his favor in this court for $800 and interest and costs. Defendant filed no formal cross-appeal, but sets out formal assignments of error in his brief, and asks that the judgment against defendant for $56 be reversed, “but that the action of the lower court in otherwise directing the verdict against the plaintiff should be sustained.”
Upon this state of facts the plaintiff contends that, as he had within the time fixed procured a purchaser ready, able, and willing to buy the land on the terms stated, and was prevented from completing the sale solely by reason of the owner of the land having previously sold it without notice to him, he is entitled to recover the sum fixed in the agency contract, citing, among other cases, Hallstead v. Perrigo, 87 Neb. 128, to sustain his contention. The defendant, on the other hand, insists that his sale of the land revoked the agent’s power to sell the land, and that therefore the defendant is not liable for anything either by way of compensation or damages, citing Hallstead v. Perrigo, supra, Woods v. Hart, 50 Neb. 497, Miller v. Wehrman, 81 Neb. 388, Maddox v. Harding, 91 Neb. 292, and Buck v. Hogeboom, 2 Neb. (Unof.) 853, among other cases, to sustain his contention.
There is no doubt that when an agent has a mere naked authority to sell land, and such authority is not coupled with an interest, the landQwner may revoke the authority at any time. Miller v. Wehrman, Maddox v. Harding, Woods v. Hart, supra. And even where a landowner by written contract gives an agent the exclusive agency to sell his land, the owner is not thereby precluded from selling it himself without the broker’s aid or knowledge. Hallstead v. Perrigo, supra; Buck v. Hogeboom, supra.
These propositions that the landowner, may at will revoke a naked agency for the sale of his land, and may himself sell it, notwithstanding an exclusive agency contract, are well settled in this state by the cases cited. But it does not follow, as contended by the defendant in this case, that no liability attaches to the landowner for services performed or expense incurred by the agent before
This language could not have been used with any idea in mind other than that the agreement to compensate for services rendered an expense incurred up to the time of revocation still remained in force after the power to close a sale had ceased. And in case of a revocation of the agent’s power to sell, either by the owner effecting a sale himself or by exercising his right to terminate the agency contract, the revocation does not become effective upon the agent’s right to such compensation as is provided in the contract, unless and until the owner gives notice thereof to the agent. 9 C. J. 520, sec. 22, and cases cited. The Nebraska cases cited by defendant do not sustain his contention.
In the case at bar, the plaintiff agent, within the time specified in the contract of agency, procured a purchaser for the defendant’s land upon terms specified in the contract, and before he had received notice or had knowledge of the sale by the owner; and, although the agent’s power to sell necessarily was revoked by the owner’s sale of the land on January 9, the agent had performed his part of
We hold that the agency contract remained in force as far as it related to his compensation up to the time on January 16 when plaintiff’s employee, Bockes, was informed that the land had been sold to another. It follows that the trial court erred in directing a verdict in plaintiff’s favor for only $56, which, according to the testimony, was the reasonable charge for some of the automobile trips the plaintiff made in an effort to sell the land.
Defendant finally argues that, as the agency contract did not provide that he give notice to plaintiff of a withdrawal of the land from the market, and as the sale by the owner necessarily operated to withdraw the land from the market, the contract terminates on such sale without notice to the agent. We cannot agree to this argument. The law requires that the parties act toward each other in good faith. 9 C. J. 520, sec. 22; Maddox v. Harding, supra. And good faith would require notice. The landowner could not secretly sell his land, and thereby terminate the agent’s right to effect a sale, and, by remaining silent, permit the agent to expend further time and effort in attempting to make a sale, and escape liability under his contract. To approve such a doctrine would be in effect to say that one man could escape liability by his own neglect or craft, and another be deprived of his rights without fault on his part. As far as the agent’s right to compensation under the contract is concerned, the land could not be “withdrawn from the market” under the terms of the contract, until the agent had notice or knowledge of such withdrawal.
Some distinction is attempted to be drawn between compensation under and by virtue of the contract and damages for the breach of it. The distinction is academic and .unsubstantial. It makes no difference to either party whether plaintiff is considered to have earned the compensation provided in the contract by performing it, or has been damaged by the loss of the stipulated commission by
In this case, the defendant’s answer set up that he did not understand the contract when he signed it, and that certain representations were made to him at the time, and, as this court said in the Hallstead case, this opinion should not be construed to the prejudice of any lawful defense the defendant may interpose to plaintiff’s claim. It is true the record shows that defendant rested his case, and it might seem that he acquiesced in the court’s announcement of its intent to make the order; but, as defendant excepted to the ruling, it leaves the record in such confusion that we think it best to remand the case for a new trial.
For the error of the district court in directing a verdict in plaintiff’s favor for $56 only, when it should have been for $800 on plaintiff’s case, we recommend that the judgment of the district court be reversed and this cause remanded for a new trial.
Per Curiam. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and this cause remanded for a new trial.
Reversed.