194 Iowa 337 | Iowa | 1922
I. Tbe plaintiff was engaged in the real estate business. Tbe defendant, Dr. Miller, was tbe owner of a quarter section of land, which be put upon tbe market in tbe fall of 1919 at $325 per acre, and listed with four real estate agencies, at $2.00 per acre commission to the successful agent. The plaintiff was one of such agents. Ben Jacobson was another. Each of them devoted considerable time and effort in attempting to procure a satisfactory purchaser. No terms of sale were specified by the seller, except tbe price thereof. Prior to March 26th, no purchaser had been procured by any of the agents. On March 27th, the land was actually sold to one Hanna. The one disputed question in the case upon the trial was, Which agent was the efficient procuring cause of the sale to Hanna? Hanna was not a stranger either to the seller or to the agents. He had formerly owned part of the land, and lived near thereto. For some time prior to the purchase, he had in contemplation the renting of it, and doubtless also the possible purchase of it. Tokheim had solicited him a number of times to make the purchase, but he had never assented thereto. He had been the subject of conversation between Tokheim and the defendant, as a prospective purchaser. Tokheim first solicited him in February, 1920. He had at that time declined to consider any purchase until after March 1st, on which date he was to have a settlement on a farm
Though, under the pleadings, the issue, was made by a general denial of the plaintiff’s petition, yet, under the evidence, the only issue made was: To which agent was Miller liable for the commission? Miller, as a witness, did not deny his liability to one agent or the other. In that respect, his position was the
“So the only question for you to decide in this case is whether the plaintiff was the efficient and procuring cause of this sale, or whether Ben Jacobson was the efficient and procur-' ing cause of the sale. If you find that the plaintiff has shown, by the preponderance of the evidence, that he himself was the procuring cause of the sale, your verdict should be for him; but if you find that he has failed to prove that he is the procuring cause of the sale, your verdict should be for the defendant. ’ ’
These instructions in this form constitute the substantial and principal ground of complaint by the appellant. It is particularly argued that there was no burden upon the plaintiff to overcome by a preponderance of the evidence the conflicting claims of Jacobson. Inasmuch as, 'under the undisputed facts, Miller could be liable for only one commission, it would necessarily follow that, if plaintiff was entitled to it, Jacobson was not; and vice versa. In the instructions as given, the trial court drew the attention of the jury to the very point at issue. The jury could not intelligently find that one agent was entitled to the commission without also finding that the other was not. Inasmuch as Hanna had never, prior to the time of his appearance in Miller’s office in company with Jacobson, consented to become a purchaser of the land, there never had been any liability on the part of Miller to any agent, up to that moment. At that moment, Tokheim was far away. His only claim is that he had requested Hanna on the previous day to go to Miller’s office to negotiate with him; but Jacobson had done the same thing,
The trial was had at Humboldt, on the Des Moines River, near the fishing grounds of judge, jurors, and litigants. Perhaps we ought to assume, therefore, that the illustration took on some local or personal color in the minds of the jurors. But the record does not disclose that the learned trial judge purported to draw on personal experience, actual or imaginary; nor does it appear that his experience or reputation as an angler, if any he had, was projected into the scene. ¥e recognize the delicacy of the subject thus injected into the trial, and the general distrust usually engendered by it. The story had in it potential peril for both litigants, and for the author. A “fish story” is often deemed a cloud upon good reputation. The credibility of it is usually aided by no presumption.
The fact remains that, from time immemorial, one of the functions of fishes has been to furnish parables for men. Granted that integrity reels and that veracity perishes when an angler delineates his catch and the dimension thereof, yet out of all the piscatorial fabrication of the ages there has abided a certain phosphorescent residuum which serves, in adept hands,
We are constrained to say that the parable under consideration, unconventional though it was, performed a legitimate function in this case. It was fatal to plaintiff only in the sense that it shed its light upon the real defect in his case.
For the reasons indicated in the first division hereof, the judgment below must be and is — Affirmed.