59 Minn. 199 | Minn. | 1894
Tbe defendant employed the plaintiff to sell certain land in the state of Wisconsin, and for that purpose wrote out an unsigned statement, as follows:
“Duluth, Minn., December 4, 1892. I hereby give T. G-. Vaughan, for fifteen days from date hereof, entire control of selling, if possible, the following described real estate, or any part thereof, for the full price of one dollar ($1.00) per acre net to me, for which I agree to give a warranty deed within a reasonable time after sale is made, or after the payment of 10 per cent, earnest money.”
Here follows a description of the land, amounting to 1,400 acres, more or less, and situate in Washburn county, in the state of Wisconsin. The writing was actually made on the 3d day of December, 1892, but, by mistake, dated December 4, 1892, the latter date being Sunday. While the writing is unsigned, yet it is not disputed but that it contains the terms of the verbal contract of employment between the parties. It was contended on the argument that this was an agreement to sell the real estate, and not one of agency for the sale of land. But this is clearly erroneous, and the terms of the writing show otherwise. In the brief of defendant’s counsel it is claimed that a contract of this kind is void, under Laws 1887, ch. 26, amending 1878 Gr. S. ch. 41, § 12, requiring the authority of an agent for the sale of land to be in writing. This is not an action to enforce the conveyance of land made by an agent. It is not a suit brought by the purchaser for specific performance, or in relation
And, this being so, it is immaterial what the law of the state of Wisconsin is in regard to contracts for the sale of land, — whether they are required to be in writing or may rest in parol.
Within the time required by the contract, the plaintiff found a purchaser, who paid 10 per cent, of the purchase money, and stood ready, willing, and able to pay the balance on receipt of the deed from the defendant. Plaintiff notified the defendant that he had found a purchaser, and requested him to make a deed to one John H. O’Neil, although it appears that he was not the purchaser, but that in fact one Lars Lenroot was the purchaser, or- one who. was ready and willing to purchase the land, and who furnished the earnest money, and was willing, able, and ready to furnish the balance of the purchase money, but, for certain reasons, he desired the deed to run to said John H. O’Neil. The main point in the employment by defendant of plaintiff was that he should find a purchaser upon the terms indicated in the writing or contract, and we do not see how it was material as to whom the deed should run. The defendant’s rights would be in no way affected or impaired by the deed running to either O’Neil or Lenroot or some other party. The defendant’s object was to sell the land, and get his pay therefor, and whether this consideration came from one party or another could not affect the legal obligation of defendant to pay plaintiff for his services when he had performed his part of the contract.
There is no point raised in this action as to what plaintiff could recover for such services, but, whatever the rule of compensation, the plaintiff should have a right of recovery for some amount if he had performed his part of the contract, unless he failed to make such a contract of sale as to render his claim here nonenforceable. The defendant did not own the land described in the writing at the time when he employed the plaintiff to sell it. After the plaintiff notified the defendant that he had found a purchaser for the land, the defendant wrote him on the 11th of December, 1892, in answer, that it was “mixed” as to whether he could deliver the goods or not, meaning, as we gather from all the evidence, that it was uncertain
“Stillwater, Minn., Dec. 18, 1892.
“Friend Vaughan: I inclose letter from Mr. Flynn, of Pittsburgh, who, with Mr. Shoemaker, are the owners of these lands in 42-12. I am sorry it has occasioned you any inconvenience, for, as I told you in my last letter, I supposed the deed could not be sent to Shoemaker till that option expired, as they have been all summer getting it executed; and, when I got word from you that land was sold, I immediately called on them, but the deed was gone two days before. I may still be able to coax them to sell, and have written them to that effect. I will write you when I hear from them. What about 53-10? Can you do anything with it? Resp.,
“John McCarthy.”
It is true that in his oral testimony he says that he got the deed in a week or two or three weeks after he made the contract with Vaughan, but he also testifies that he did not have it when he made the contract with the. plaintiff. He also testified that if Mr. Vaughan had come around, and laid the money down, he would have delivered the lands, but that he would just as leave that he would not come around and that he would rather he would not come around, because there was an iron boom, and he would rather plaintiff would not have the lands. It will be noticed that the defendant’s letter of December 18, 1892, was dated just fifteen days after the time he made the contract with Vaughan, and the sale was to be made within fifteen days.
When the parties to whom the plaintiff had engaged to sell the land found that they could not obtain the same from McCarthy, they withdrew their earnest money, and the purchase was never consummated. We do not think that it was necessary, in a legal point of view, for the contract of sale between Vaughan and the willing purchaser to be in writing. It was sufficient if the' purchaser paid down the earnest money, as he did, and stood ready, willing, and able to pay the balance on delivery of the deed. Nor was it necessary for the plaintiff to seek the defendant, and tender him the earnest money or the full amount. He had notified defendant
The order denying a new trial is reversed, and new trial granted.
{Opinion published 60 N. W. 1075.)
Petition for rehearing denied Dee. 14, 1894.
