130 Iowa 532 | Iowa | 1906
'Plaintiffs petition is in three counts. In the first he asked reasonable compensation for finding a purchaser for defendant’s property, at his (defendant’s) instance and request. In the second he asked judgment for an agreed compensation of two hundred dollars for finding a purchaser for the property — 'defendant having refused to complete the sale, because of his sale to another — and for failure to give plaintiff notice of the prior sale as he (defendant) had agreed to do. And in the third he asked compensation for services in finding a purchaser who was ready, willing, and able to take the property at the price and upon the terms named by defendant. Defendant denied practically all the allegations of plaintiff’s petition, although in one division of his answer he admitted that he placed the real estate in plaintiff’s hands for sale, reserving the right to sell the same himself, or through other agents; and averred that he sold the property to one Shorthill, before plaintiff found a purchaser, thereby terminating plaintiff’s agency. He further averred that he agreed to give the first agent who sold the property two hundred dollars, and that he notified plaintiff of this fact; that thereafter another agent sold the prop
The two main questions of fact in the case are these: First. Did the defendant, when he placed the property in plaintiff’s hands for sale, agree to notify him (plaintiff) . immediately, in case he or some other agent sold the property, or in case he withdrew the same from the market? This is affirmed by plaintiff and denied by defendant. Second. If there was such an agreement, did defendant do as he agreed in notifying plaintiff of the sale to Shorthill? These two questions of fact were submitted to the jury, and the finding- was in plaintiff’s favor. There was evidence in support of the first proposition, and little complaint is made of the finding thereon on this appeal. The contention in this respect is that the trial court adopted an erroneous rule for the admeasurement of damages. For appellant it is contended that plaintiff is not entitled to recover at all, unless he shows that defendant was obligated to give him (plaintiff) notice of the sale of the property either by himself or through another agent; and doubtless this is the law. White v. Benton, 121 Iowa, 358. But the jury, having found that defendant agreed to give plaintiff notice of such sale, the next question is when did defendant make the sale to Shorthill, and when did he notify plaintiff thereof. As to these propositions there is a dispute. Defendant says he sold the property to Shorthill on January 10th, and that he almost immediately gave plaintiff notice of the sale; while plaintiff contends that the sale was made January 9th, and that he was not notified thereof until the 10th, and after he (plaintiff) had found a purchaser for the property. Assuming that plaintiff’s contention in this respect is correct, the next question is the measure of his recovery. The trial court instructed that it was the agreed compensation, $200, with interest, while defendant contends that recovery should have been limited to the actual damages sustained by plaintiff.
The jury found that the agreement between plaintiff and defendant was that, if defendant by himself, or through any of his agents, sold the property, he (defendant) was to give plaintiff immediate notice of that fact. Taken in connection with the admitted facts, this should be construed to mean an actual sale, a binding agreement on the part of defendant to sell, or the finding of a purchaser by another agent than plaintiff, ready, willing, and able to buy, of which fact defendant had notice. This was evidently what the parties contemplated by their agreement, and not the actual transfer of the title to the property. The contract in suit is an agency contract, and was made for the protection of both parties. Thereunder defendant might sell the property himself or through other agents, without liability to plaintiff, provided he gave plaintiff immediate notice of such sale, and plaintiff had, as a stimulus to the making of a sale or the finding of a purchaser, which was the same thing, so far as this contract is concerned, any time before notice to bim by defendant of a sale to another. According to defendant’s own testimony he was to pay a commission of $200 to the first agent reporting a sale. Doolittle reported the Shorthill sale on January 9th, and was then entitled to his commission, and, in contemplation of the parties, it was such a sale or arrangement as this which the parties had in mind in making the agency contract in suit. The instruction given by the trial court to the effect that the sale to Shorthill was .on January 9th was manifestly correct. Moreover, defendant in his testimony expressly stated that Doolittle found a
White & Hoskins v. Benton, 121 Iowa, 354, so strongly relied upon by appellant, is not in point upon any of the propositions involved in this appeal.
We might not have arrived at the same conclusion on the whole case as the trial jury, but that is no reason for reversing it. The fact questions were for that body, and, upon conflicting evidence, we are-not justified in interfering with its conclusions.
The case has been tried twice at least; and, as the record discloses no prejudicial error, the judgment must be, and it is, affirmed.