290 P. 1027 | Nev. | 1930
Under the evidence there was no possibility of the court finding an expressed contract in favor of the plaintiff, and the findings as made by the court that there was an implied contract could only be based upon the fact that the Scheeline Banking Trust Company was the owner of the property and had profited through the efforts made by the plaintiff to sell the property. That is not supported by the evidence. The ownership of the property was not an issue in the cause and there was no allegation that the bank at any time was ever the owner or had any interest whatever in the property. An effort was made during the trial to show that there *8 was a $12,500 indebtedness due the bank from the property, but this $12,500 was shown to be money advanced by the Scheeline Banking Trust Company at the request of A.D. Castro, and the bank looked to A.D. Castro and not to the property for its money, hence the bank had no interest in the property except such interest it would have in discharging the duties it had assumed with reference to A.D. Castro. And all parties informed the plaintiff that Mr. Castro, as the representative of the bondholders, was the one that had to be satisfied and that Mr. McGuire was the representative of Mr. Castro here and not the Scheeline Banking Trust Company. The rule in these cases is correctly stated in the 23 American and English Ency. of Law, pp. 911 and 912.
There are many cases holding that where the owner accepts a broker's services with knowledge that he expects to be paid therefor the owner is liable. In this case it is shown that the real owner in fact is A.D. Castro and his associates and Mr. McGuire was the representative here of A.D. Castro. The fact that the bank advanced money, bid in the property at the request of A.D. Castro and then forwarded moneys and offers to purchase to Mr. Castro could, by no process of reasoning, make it liable for a broker's fee in selling the property. Miller v. Loser, 121 P. 156; Duncan v. Borden,
The only relationship the Scheeline Banking Trust Company had to the property was merely as trustee for the title to convey it to such persons as Mr. Castro or his agent might designate, but no such allegation was set up in the complaint nor is there any effort made to show an implied contract or an interest of the defendant in the property itself. "Judgments must accord with and be warranted by the pleadings of the party in whose favor it is rendered." Black on Judgments, vol. I, sec. 183; Frebert v. Henry,
There is no question whatever about the following legal propositions: That a person who employs a broker to sell a property for an undisclosed principal is liable for his compensation; that if an agent who is authorized to sell property authorizes a broker to obtain a purchaser for the same, the agent is liable for the services performed by the broker; that if anyone requests another to perform services for them and the other person performs such services, the person requesting such services is liable for the reasonable value of the same.
There is no question but what the bank held the legal title to the Nightingale property at the time of the procuring of a purchaser and that thereafter they acquired the title free from all encumbrance at a foreclosure sale in order that they might sell the property to the purchaser obtained by Tamney, and that the bank, through its vice president and general manager, Mr. Shockley, had told Tamney that McGuire was handling the property, and that McGuire had told Tamney to "go to it," in reply to Tamney's statement that he thought he could obtain a purchaser, and that at the very time the bank had obtained title to the property so that it could be sold they knew that the plaintiff expected to be paid for his services.
It is hardly necessary to go into any discussion of the law in regard to implied contracts. Perhaps the case of Millard v. Loser, 129 P. 156, states the rule as well as any case.
In regard to the contention that the bank was not the actual owner of the property, the rule stated in 9 C.J. 586 is that "one who employs a broker to find a purchaser is usually liable for compensation regardless of the nature of his interest in the property and regardless of whether he has any interest in it whatsoever."
In addition to this, it is respectfully submitted that at the time the sale was made the bank owned the *10 property; that it was being conducted at a loss of $300 per month; that the bank had approximately $12,500 invested in receiver's certificates and assignments of wage claims, and stood to lose a very considerable amount of money if the property was not sold, and sold quickly. The amount of the judgment in this case is, according to the testimony of Mr. McGuire, a sum equal to what it would cost to keep the property for one hundred days.
The complaint alleges that, on or about the month of March, 1927, the parties entered into an oral agreement by the terms of which the plaintiff was employed as a broker to find a purchaser for certain mining property situated at Nightingale, Pershing County, Nevada, in which it was agreed that in the event the plaintiff found such purchaser the defendant would pay him for such services an amount equal to 10 per cent of the sale price received. It is alleged that on or about the 25th of November, 1927, plaintiff found a purchaser for the property, and the defendant sold said property to this purchaser for the sum of $22,500. As a second cause of action it is alleged that at the special instance and request of defendant, the plaintiff performed services as a broker for the defendant in finding a purchaser for said mining property, and that the reasonable value of said services is the sum of $2,500. These allegations are denied in the answer. The case was tried before *11 the court sitting without a jury. The following facts are undisputed:
For about two years prior to the trial of this action, on April 6, 1928, W.A. Shockley had been the receiver of the Pacific Smelting Mines Company, and was also vice president and general manager of the defendant bank. During the receivership the defendant had loaned the receiver $5,000 on receiver's certificates, had taken by assignment a number of labor claims against the insolvent company, and had made advances for taxes and care of the property amounting in all to the sum of $12,500. On September 4, 1926, the receiver sold the real property in his hands to the defendant for $100, and the personal property to one R.A. McGuire for $100. There was then an outstanding indebtedness against said insolvent company in the amount of $250,000, represented by bonds held by persons residing in Honolulu, which bonds were secured by a trust deed of said property. Thereafter the defendant purchased the property at a sheriff's sale on the foreclosure of said trust deed. In the meantime the plaintiff had interested one John G. Clark, president and general manager of the Tungsten Production Company, Inc., of Colorado, in the property, and it was subsequently sold to this company by the defendant for the sum of $22,500 in cash. It is for bringing about this sale that plaintiff claims a commission.
It was under an agreement made by the defendant and the representatives for the bondholders that the receivership sale was made and the property bid in by defendant, and under a similar arrangement by the defendant and the representatives of the bondholders and of the Tungsten Production Company, that the foreclosure sale was made by which the defendant became the purchaser. The receivership sale and the foreclosure sale were both made to the defendant for the purpose of facilitating the sale of the property to the Tungsten Production Company. The defendant retained $12,500 of the $22,500 received for the property and distributed the balance, or $10,000, according *12 to an agreement it had with one A.D. Castro of Honolulu, who held a power of attorney from bondholders representing more than $150,000 of the $250,000 indebtedness of the insolvent company. The $12,500 advanced by the defendant was advanced at the request of said Castro acting as the representative of said bondholders. The court found as follows:
"The court finds that the allegation as to the existence of an express contract set forth in plaintiff's first cause of action is not supported by the evidence. As to plaintiff's second cause of action, the court finds that the plaintiff was instrumental in securing a purchaser and in making the sale of the property mentioned in plaintiff's complaint for the sum of $22,500, and that the reasonable value of plaintiff's said services in that connection is $1,000 instead of $2,250 as alleged in plaintiff's second cause of action. The court further finds that there was an implied contract existing between the defendant and plaintiff for plaintiff's services in obtaining a purchaser for the said property and that there is now due from defendant to plaintiff the sum of one thousand ($1,000) dollars for such services * * * together with his costs of suit."
1-4. It is contended that the finding of an implied contract on which the judgment was rendered was unauthorized, for the reason that there is no allegation in the complaint that the defendant was the owner of the mining property, or no evidence to prove such ownership. In support of this contention it is argued that the evidence shows that the defendant held the title to the property as a mere trustee for the real owners, who were the bondholders. A trustee, however, may become liable to one for compensation for effecting a sale of the trust estate. 26 R.C.L. 1316, 1317. Ownership, or the character of the ownership of property by a person from whom a broker's compensation is claimed for effecting its sale, is immaterial and need not be alleged or proved in an action for the recovery of such compensation. The right of a broker to a commission for the sale of property depends upon a *13 contract of employment, express or implied. 4 R.C.L. pp. 297, 298. "One who employs a broker to find a purchaser is usually liable for the compensation regardless of the nature of his interest in the property, and regardless of whether or not he has any interest in it whatsoever." 9 C.J. p. 586. We perceive no logic in the claim that the contract may not be implied.
5. The evidence in this case shows without dispute that plaintiff was instrumental in bringing about the sale of the property from the defendant to the Tungsten Production Company, Inc. There is also, in our opinion, sufficient evidence from which a promise on the part of Shockley as the agent of defendant to pay the plaintiff a reasonable compensation may be inferred.
The judgment is affirmed.
