128 P. 49 | Ariz. | 1912
Charles Bowman, appellee, brought this action in the district court of Cochise county for the recovery of $2,500 alleged to be due him by Paul B. Warnekros, appellant, as a commission for effecting a sale for the latter of
The allegations of the amended complaint on which the ease was tried, after stating the residence of the parties, are as follows: “(2) That, on or about the fourteenth day of October, A. D. 1907, the defendant was the owner and possessed of 20,000 shares of the capital stock of the Great Western Copper Company, a corporation organized under the laws of the territory of Arizona. That on or about the said last-mentioned date, the defendant employed the plaintiff to negotiate the sale of, and procure a purchaser for, the said 20,000 ■shares of stock, for which services the defendant agreed to pay to the plaintiff a reasonable commission. (3) That, pursuant to and in accordance with the terms of said employment, the plaintiff did thereafter, on or about the eighth day of April, A. D. 1908, negotiate with and procure one C. H. Toung, of Clinton, Iowa, to enter into an agreement with the defendant for an optional sale and purchase of the said 20,000 shares of ■stock for the sum of $100,000 as the purchase price in lawful money of the United States, by the terms of which agreement the sum of $5,000 was paid to the defendant in cash at the •date thereof, and the balance of said purchase price was to be paid to the defendant in deferred payments at’ the option of said C. H. Young; that, pursuant to the said agreement, the 20,000 shares of the said capital stock were placed in escrow with the Consolidated National Bank of Tucson, at Tucson, Arizona, to be delivered to the said C. H. Toung upon the final payment of the said purchase price. (4) That the said C. H. Toung, pursuant to the terms of the said agreement and escrow, has paid to the defendant on account of the said purchase price of the said capital stock the sum of $25,000 lawful money of the United States. (5) That ten per cent of the purchase price of the said capital stock by the terms of the said agreement for the sale of said capital stock is a reasonable commission for plaintiff’s services in negotiating the sale of and procuring a purchaser for the said 20,000 shares of the capital stock of the Great Western Copper Company, a corporation; and that $2,500, being ten per cent of the
The answer to this amended complaint consists of a general demurrer and a general denial. Before the demurrer was passed on, appellant moved for judgment on the pleadings, and the motion was denied, which was followed by an order overruling the demurrer. At the opening of the trial, the appellant objected to the introduction of any evidence in the ease on the ground that no cause of action was stated in the amended complaint, which objection was overruled. During the trial the appellant again moved for a judgment on the admission by appellee, on cross-examination, that he referred to the optional agreement as the conclusion of his procurement and relied on the same as the foundation of his claim for recovery, which motion was also denied. These rulings, together with others admitting, over appellant’s objection, evidence of the value of services in procuring an optional contract-of sale, form the basis of the seventeen errors assigned by appellant. The sufficiency of the amended complaint was attacked by appellant by a general demurrer, the overruling of which is assigned as error, and a determination of this assignment will be decisive of the case. The amended complaint alleges that appellee was employed “to negotiate a sale of and procure a purchaser for” 20,000 shares of mining stock, “for which services” he was promised a reasonable commission. It further appears from the allegations of the complaint that appellee procured one C. H. Young to enter into an optional contract for the purchase of said stock.
There is no allegation that a “sale was negotiated and a purchaser procured” in accordance with the terms of the employment, unless an optional sale can be construed to be the same as a sale absolute for the purpose of recovering an agent’s commission. According to the terms of this agreement, as appears from the complaint, $5,000 was paid on the date of its execution, and the remaining $95,000 was to be paid on or before specified dates, at the option of said O. H. Young. The appellant, Warnekros, was bound by its terms, and could have been compelled to convey upon receipt of the payments as
It is obvious that, in agreeing to pay appellee a reasonable commission for performing the service named in the contract
It is elementary that in an action for services the fact that the services were rendered must be alleged. 22 Ency. of Pl. & Pr. 1367; Shuttuck v. Griffin, 44 Tex. 566; Brickey v. Irwin, 122 Ind. 51, 23 N. E. 694.
It is argued by appellee that Warnekros waived the requirement that an actual sale be made by Bowman before earning his commission when he accepted and entered into the optional agreement, procured by appellee, with O. H. Young. We are unable, however, to see wherein the mere act of entering into and accepting the optional contract of purchase by Warnekros of itself can be construed as a waiver by him of the requirement that Bowman make the sale, or secure a binding contract of sale, before earning his commission. It is a matter of common knowledge that sales of mining stock and mining property are frequently effected through options. If a real estate owner employs a broker to negotiate a sale of and find a purchaser for his property for which he agrees to give the broker a reasonable commission, and afterward gives an option for the sale of his property to a person produced by the broker, he does not thereby waive the requirement that a sale must be effected before he is entitled to his commission. By granting the option the owner is merely helping to bring about the sale which he employed the broker to make. It is a step in that direction. It is not the end, but rather the means to an end. And such action on the part of the owner does not imply that he has made a new
It is insisted by appellee that the decision of this court in the case of Mayhew v. Brislin, 13 Ariz. 102, 108 Pac. 253, is controlling in this case. An examination of that ease discloses that it is an action on a quantum meruit. Brislin had been employed to negotiate a mining deal concerning the purchase of certain mining claims, for which services he was promised a reasonable compensation. The services were performed, but Brislin was compelled to sue for his compensation, and in passing on the admissibility of evidence of payments of large sums to the seller after the completion of the deal and commencement of the suit the court used this language: A real estate broker’s “contract is completed, and he is entitled to compensation, even though he be employed for the purposes of sale, when he has introduced a purchaser and his principal chooses to waive that requirement, and enters into an optional contract. The broker in such case is permitted to show that subsequent thereto the option has been exercised, and the courts allow him compensation upon the basis of the amount paid thereon.” The court was merely concerned in. reaching a correct basis for determining what was a reasonable compensation for a middleman’s services, and it is apparent that if .a deal had been effected on which large payments had been made, and others, according to the complaint, would be made as the deal called for, the proper basis on which to measure the agent’s compensation would be the total amount realized from the deal, whether the payments were made before or after suit brought. The issues of both law and fact involved in that case áre in no particular the same as have arisen here.
The judgment is reversed and the cause remanded to the superior court of the state of Arizona in and for the county of Cochise, with instructions to sustain the demurrer.
FEANKLIN, C. J., and EOSS, J., concur.
N. B.—CUNNINGHAM, J., being disqualified and announcing his disqualification in open court, the remaining judges, under section 3 of article 6 of the constitution, called in Hon. A. G. McALISTBE, Judge of the superior court of the state of Arizona, in and for the county of Graham, to sit with them in the hearing of this cause.
NOTE.—As to the duties of brokers of stock to their clients, see note in 75 Am. Dec. 313.