167 N.W. 221 | N.D. | 1918
Lead Opinion
Appeal from the district court of Hettinger county, Honorable W. O. Crawford, Judge.
Plaintiff maintains this action to recover commissions claimed to be due her for procuring a purchaser for a certain 160-acre tract of land owned by the defendant, situated in Hettinger county, North Dakota.
The facts are as follows: In 1915 plaintiff wrote the defendant, requesting his price and terms of sale of a certain 160-acre tract of land owned by the defendant, in Hettinger county, North Dakota. Defendant replied, stating price and terms, and also stating he made the same price and terms to other agents. Subsequently plaintiff wrote defendant, offering a purchaser who desired to make a trade for defendant’s land, which offer defendant refused, but made some modification in his terms. Subsequently defendant again modified his terms of sale of
The appellant makes six assignments of error, and argues them under three different heads. One of the main assignments of error contains the following language: “The court erred in instructing the jury that the agency of the plaintiff was an exclusive agency.” Another is:
All the assignments of error are considered by the appellant under three main heads as follows: First, was the agency of the plaintiff an exclusive agency? Second, if the agency was exclusive, can the agent recover her commissions if the sale was made in good faith through other agents, before notice of the acceptance of the terms by plaintiff’s purchaser ?”
If the agency is not exclusive, and sale is made by other agents within the period of listing, before the owner has notice of the acceptance of the terms by plaintiff’s prospective purchaser, is the plaintiff entitled to her commissions ?
If the first proposition of law is determined in plaintiff’s favor, there is but little need of considering the other propositions, although we may analyze the other propositions in a conscise manner.
It is plain that the contract as to the terms upon which plaintiff was authorized to sell such land was not complete until the final letter that defendant wrote her, fixing the amount of her commissions limiting the time in which she might sell said land. Such letter reads as follows: “It occurred to me after writing you from Illinois that your prospective buyer for southeast of 21 would think the second payment of one-fifth balance and the interest added would be too much for him; if so, I would let the interest go until the third payment, which would be November 1, 1917, which would leave him only $700 to pay November, 1916. I will also allow you $1 per acre commission if you make this sale by November 1st, next. After that date I will withdraw it from sale. I will consider it a favor if you will answer this letter at once, as your reply will likely make some difference to me about renting for another year.”
This is important as completing the terms upon which the land might be sold by the plaintiff, and the commission which she should receive in case of sale of the land, and the time in which she had authority to make such sale. It is clear that plaintiff had the right and
The defendant knew he had authorized the plaintiff to sell said land any time up to November 1st. He knew that plaintiff was actively engaged in trying to secure a purchaser for said land. He knew that he had in his letter given her an agency to sell such land for a certain time. It is clear that if she produced a purchaser within such time who was ready, able, and willing to comply with the terms of sale of •such land, she would have earned and would be entitled to her commission as agreed upon, and this though the land was sold by the defendant through another agent before notice of the sale of the land by the plaintiff. The defendant in the case never at any time revoked the •authority of the plaintiff. She therefore had a right to make the sale of the land at the time she made a sale of the land to Nelson. It is competent for the principal to agree that the agent or broker shall have & certain time within which to find a purchaser, and if the broker or agent finds a purchaser who is able, ready, and willing to comply with the terms • upon which the property is authorized to be sold by the principal within the time, the principal is liable for the commissions .agreed to be paid, even though the property is sold through another agent before notice of the sale by the other authorized agent.
We have considered all the authorities cited by the appellant, and while they to some extent sustain appellant’s position they are by no means conclusive upon the questions involved in this case. Where a ■contract of agency to sell property fixes a definite time in which the agent may sell such property the agent has the whole of said time in which to make the sale. If the principal may, through other agents, sell the property, and not become liable to an agent who has a contract for a definite time to sell the property, and who does sell such property within the time, then such contract for a definite time does not mean what it says.
This is not a contract where the principal has given the authority to different agents for a specified time in which to sell the principal’s property; and providing further that whichever agent sells the property first and notifies the principal first will be entitled to the commission. That is not the kind of a contract which we are considering. In' the case at bar the plaintiff had a specified time in which to sell the
The judgment is affirmed, with costs.
Concurrence Opinion
I concur in the affirmance of the judgment for the reason that there appears to be no evidence from which it could have been found that the plaintiff knew the land was sold at the time her purchaser was supplied.