188 Iowa 395 | Iowa | 1920
Lead Opinion
Plaintiff is a real estate broker. Some time prior to October 11, 1912, defendant had purchased the 570 acres of land he now owns, and in dispute in this case, and in that transaction the plaintiff had been interested, as broker in that sale, and claimed to be entitled to a commission from the party who then sold the land to defendant; and plaintiff had brought some kind of an action to establish a lien on the land. That suit was pending when the contract soon to be referred to was entered into between plaintiff and defendant. Prior to the execution of this contract, there seems to have been an understanding between plaintiff and defendant, by which plaintiff had undertaken to make a sale for defendant, of defendant's land in dispute, to Mrs.
On October 11, 1912, plaintiff and defendant entered into the following contract:
“Des Moines, Iowa, October 11, 1912. It is hereby agreed and has heretofore been agreed and understood that if the deal or trade is made by J. J. Ryan of Port Dodge, Iowa, and Mrs. F. Saueerman of Des Moines, Iowa, I hereby agree to pay to Edward Thompson of Oallendar, Iowa, the sum of $3,000 for acting as my agent in the matter and the said Edward Thompson is to accept securities for same that I receive of Mrs. F. Saueerman. It is agreed Edward Thompson will dismiss suit affecting title of the land trade. Signed in duplicate, J. J. Ryan, Edward Thompson.”
After this agreement, the plaintiff dismissed the suit that was then pending. ' A month or more after this contract, the defendant and Mrs. Saueerman, an old lady, about 75 years of age, who died some time in 1913, entered into a written contract as follows:
“Exhibit No. 1. This agreement made this 9th day of November, 1912, between J. J. Ryan of the county of Webster, state of Iowa, party of the first part and Mariam Sau-cerman of the county of Polk and state of Iowa party of the second part as follows:
“The party of the first part hereby sells to the party of the second part on the performance of the agreements of the party of the second part as hereinafter mentioned, all his right, title and interest in and to the real estate situated in the county of Palo Alto and state of Iowa, to wit: [describing defendant’s 569.81 acres in Palo Alto County.]
“And the party of the second part in consideration of the premises hereby agrees to and with the party of the first part, to purchase all his right, title and interest in' and to the real estate above described, -situated in the county of Palo Alto and state of Iowa, and to pay and exchange there
“In addition to the conveyance of the land described in Exhibit A the party of the second part agrees to pay to the party of the first part the sum of seven thousand five hundred ($7,500') dollars in good securities, consisting of mortgages and real estate contracts in force where equities are amply good. Each party to assume and pay the incum-brance upon the land received by him or her, but any difference in the amount of incumbrance is to be made up by either an increase or decrease of negotiable securities above described.”
Exhibit A, attached to that contract,- contains a list of a large number of lots and parcels of land, 30 or 40 or more. This contract is dated November 9, 1912, but was not signed at that time, but was signed at a later date. This contract was drawn by Mr. Sullivan, and plaintiff, defendant, Mrs. Saucerman, and her daughter, or granddaughter, and her attorney, Steele, were present. It is conceded that this contract between defendant and Mrs. Saucerman was never performed. The defendant had made at least some examination of Mrs. Saucerman’s property, and, as we gather, this was before the last-named contract was signed; and Mrs. Saucerman had employed an attorney to assist her, but perhaps more with reference to the condition of her own affairs. The $7,500 securities that Mrs. Saucerman was to turn over to defendant might, according to the contract, be increased or decreased, according to the amount of incum brance on her properties. It appears that, upon investigating the incumbrances, it was found that she would have to turn over to appellant about $12,000 in securities, to make up the difference, and that, to release these securities, she
On the other hand, appellee contends that where, as here, the plaintiff was required to do the things specified in his contract, and the property owners have entered into'a binding contract, then his commission is due: in other words, that, under his contract, the deal or trade is made when there is a binding contract between the two property owners. He cites and relies on Wenks v. Hazard, 149 Iowa 16; Nagl v. Small, supra; Flynn v. Jordal, supra; Ketcham v. Axelson, supra. Appellee also relies on the case of Laubscher v. Mixell, 171 Iowa 88, as holding that, to be entitled to a commission where no completed transfer is made, a broker employed must find a purchaser, or one who will trade upon terms fixed by the principal, or take from the customer a binding contract of purchase or trade, acceptable to the principal. In the Wenhs case, the court, after stating that there was more or less confusion in the cases, said:
“This is not a case where the commission was to become due upon a completed sale. Nor is it a case where the terms and conditions of the sale were fixed in advance by the owner, and he agreed to pay a commission when a purchaser on the terms stated was produced. Where the
After reviewing a number of decisions, the court said further: .
“In none of the cases, so far as we have been able to find, has it been held tUlt there can be no recovery where the owner reserves the right to fix his own terms and conditions, and agrees to pay a commission for a purchaser who will enter into such a contract as he shall dictate.”
It may be conceded that the contract in the instant case is not in the precise language of the cases cited by ap-pellee. We shall not stop to review them, but say that we think the contract in question comes more nearly within the rule laid down in such cases.
“The defendant proposes to prove by this witness that, subsequent to the writing of the contract, and before it was signed, Mrs. Saucerman called at his home, and stated to him that it was not possible for her to raise the money to release the securities which, according to the terms of the contract, as written, she, was to turn over to the defendant, unless she could raise about $12,000 or more for that purpose; that, unless she could make that loan, or it.could be made for her, she was unable to perform the contract.”
“Defendant further states and shows to the court that Mrs. Saucerman was a stranger to this defendant, and that he knew nothing about her financial responsibility or her ability to carry out and perform the terms of said contract; that plaintiff claimed and pretended to be well acquainted with said Mrs. Saucerman, and to have knowledge of the property owned by her, and of her ability to perform and carry out said contract; that, at the time defendant signed said contract, he did so upon the representation orally made to him by plaintiff that Mrs. Saucerman would be able to raise money to release the securities referred to in said contract, and which securities had, previous to that time, been pledged by Mrs. Saucerman. Plaintiff also, at said time, represented to defendant that said securities, when so released, would be turned over to defendant, and that Mrs. Saucerman was in a position to carry out and perform the terms of said contract, Exhibit 1. That, relying on the representations of plaintiff, and believing that the same were true, which belief was founded on the statements and representations made by plaintiff, defendant signed said contract. Defendant now states that said representations were false; that plaintiff know, or should have known, that the same were false, at the time he made them to defendant; and that said representations were made for the purpose of deceiving this defendant, and of inducing him to sign said contract.”
The defendant, as a witness, testified that plaintiff called upon him, after Mrs. Saucerman came to see him, and before Exhibit 1 was signed, and that he had a talk at that time with plaintiff about Mrs. S'aucerman’s ability to carry out the contract. He says:
The defendant did sign an application for a loan with the Bankers Life, but it was refused. The plaintiff had not arranged for the loan. He did prepare an application therefor. As said, this was before Exhibit 1 was signed; and the defendant set out in his answer, and testified, that he signed the Saucerman contract, relying on such representation. The defendant’s evidence, before set out, went in without objection, and there' was no objection by plaintiff to the sufficiency of the defendant’s answer in regard to the alleged fraud, and no question of that kind is made in this court. It must be conceded that the pleading is not as definite as the defendant’s evidence. It may be that the trial court’s theory as to this was that the alleged representa
Other questions are argued, in regard to supposed error in some of the instructions and in rulings on evidence; but they are such as that they are not likely to occur on a retrial of the case, since it will doubtless be tried on a somewhat different theory.
3. Since we hold that, under the contract, plaintiff was entitled to his commission when a valid contract was signed between the property owners, we think he would be entitled to interest from the date of the actual signing or execution of the contract, if it should be found that there was such a binding, enforcible contract made. And we think the court erred in allowing interest only from the commencement of the suit. Because of the reversal of the case on appellant’s appeal, it may be that we are not required to pass upon this question, but have concluded to say this much, in view of a new trial. The cost of appellee’s additional abstract.
Rehearing
Supplemental Opinion on Behearing.
“We shall not stop to review them, but say that we think the contract in question comes more nearly within the rule laid down in such cases.”
A majority of the court are now of opinion that sucli statement is not correct. The statement just quoted is, therefore, withdrawn. The writer of the opinion still thinks that the statement is correct, unless a different rule applies because of the provision in the contract between plaintiff and defendant which reads: “And the said Edward Thompson is to accept securities for same that I receive of Mrs. F. Sau-cerman.” That question was not discussed in the original opinion. Though the contract between Byan and Saucer-man, on the face of it, was executed, it is conceded that it was not consummated by them by an exchange of properties, and that no securities were received by Byan from Mrs. Saucerman. If it should be found, as claimed by defendant, that the contract was obtained by fraud, there would, of course, be no contract at all. If it should be found that the contract was not obtained by fraud, then the question is whether plaintiff would, in any event, be entitled to a money judgment, or whether he would only be entitled to
Ormsby v. Graham, 123 Iowa 202, 213, 215, was an action for specific performance, in which the agent was made defendant, and he, by cross-petition, asked judgment for his commission. The contract provided, in substance, that the agent was to use all proper efforts to sell, upon the stated terms and conditions, to draw all papers necessary to consummate the sale, and to pay over the cash payment re
Robertson v. Vasey, 125 Iowa 526, is somewhat similar to this. In that case, the contract was construed to mean that payment of the agent’s commission was dependent upon the payment of the purchase price of the land, and that the commission and land contracts should be construed together, so far as they relate to the purchase price. As bear
We shall not take the space or time to refer further to such cases. What has been said herein qualifies in like manner the last paragraph of the opinion in regard to interest. Interest would not be allowed, in any event, unless the securities were received. As modified by this supplement, the original opinion will stand, and the petition for rehearing is overruled.