149 Iowa 16 | Iowa | 1910
Lead Opinion
The defendant and one McLeod each
The plaintiff alleged in his "petition that in the latter part of 1905, or the first of the year 1906, an oral agreement was entered into by him and the defendant, whereby the defendant agreed to pay him the sum of $2,000 if he should find a purchaser to whom the defendant was willing to sell his laundry stock; that pursuant to such agreement he did procure a purchaser who was satisfactory to the defendant, and to whom the defendant sold said stock. There was a general denial on the part of the defendant. The situation seems to have been this: The defendant was anxious to get the $4,000 that McLeod owed him, as well as the amount due him from the laundry company. The plaintiff testified that Hazard wanted to sell to some one other than McLeod, if possible; that he and Hazard talked it over for a month or two; that finally he told Hazard that he could sell the stock to McLeod if he would make it so McLeod could pay for it on the installment plan; that Hazard “said he would do it. He said he would fix it in any way he could get rid of it. He said, if I could get McLeod to take that stock so that the payments were satisfactory to him, he would give me $2,000.” On the 23d of January, 1906, Hazard and McLeod entered into a written agreement, whereby the former agreed to sell, and the latter to purchase, the former’s shares of stock in the laundry company on the following terms, so far as material here. McLeod was to pay $4,000 in cash. $17,500 was payable in installments of $100 of the principal and all interest accrued on the whole of the principal on the 23d day of each month thereafter until the whole amount was paid. The contract
This is not a case where the commission was to become due upon a completed sale. Nor is it a case whore 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 commission depends upon a consummated sale, the’burden rests upon the plaintiff to show that the purchaser was able and willing to perform, and that the owner was at fault. And the same rule applies where the terms are fixed in advance by the owner and the agent claims to have procured a purchaser upon the terms stated. The case at bar belongs to still another class in our judgment. Here the terms of sale were not fixed in advance by the owner, and therefore it was impossible for the plaintiff to know what they were or might be. The terms and conditions of the sale being expressly reserved for determination by the owner, it is manifest that the agent or broker can not know whether the purchaser can or will accede to the terms fixed. The owner reserves the right to and determines the ability of the purchaser to pay or to comply with other terms which he may fix, and it would be manifestly unjust to say to the broker that his commission must depend upon the correctness of the owner’s judgment or ability.
While there is more or less concision in our own cases, we do not think a ease can be found which supports the appellant’s contention. In the cases which appear to lend support thereto, it will be found that the facts are entirely different, and that the broad language used in some instances was applied only to the case then under considera
We have given this case the care which its importance to both sides merits, and we reach the conclusion that there is no ground upon which a reversal can be justly based. We think the evidence sustains the verdict and judgment. The judgment is therefore affirmed.
Dissenting Opinion
(dissenting). — I am unwilling to concur in the majority opinion. My views of the case are expressed in the former opinion which is reported in 121 N. W. 1058, and I do not care to repeat. I think the case is ruled by our previous cases. Some of these are reviewed in the majority opinion and are distinguished from the case at bar. I prefer that they be thus distinguished than that they should be professedly overruled. I think the distinction urged is exceedingly difficult. Moreover, the statement of the case for the -purpose of the distinction involves in my judgment a straining of the record to some extent. The real substance of the record is that the plaintiff obtained a judgment in the court below for $2,000 as an alleged agency commission for which there was no
The tendency of this holding is to lower the business standard of an agency broker and to permit a broker’s commission to become a mere matter of plunder. The plaintiff in this case was not even a broker, but was engaged in a wholly distinct line of work. His case is based upon an alleged express contract, and the verdict of the jury is such as to suggest the need of an additional paragraph to the statute of frauds.
Concurrence Opinion
I concur in the foregoing dissent.