88 Iowa 514 | Iowa | 1893
In January, 1891, the defendant owned three lots in Sioux City, on two of which there were mortgages to the amount of one thousand, three hundred and fifteen dollars. At the same time one E. L. Miller owned one lot in Sioux City, on which there were mortgages to the amount of eight thousand, one hundred and twenty-five dollars. E. B. Robinson, for some time, had been the. agent of Miller, with authority to place his property with agents for the purpose of effecting a sale. The plaintiff was a real ■estate agent of the city, and there had been' some conversation between him and Robinson in regard to the ;sale of Miller’s property. There ’ is some conflict in the evidence, but the facts testified to by the plaintiff, or shown without material conflict in the evidence, are ■substantially as follows:
Some time before the transaction in controversy occurred, Robinson agreed with the plaintiff to pay him one-half of the commissions usually paid in such ■eases, or one hundred and eighty-one dollars and twenty-five cents, if he would find a purchaser for Miller’s lot. About the middle of the month named, the plaintiff called on the defendant, at his place of
The appellant contends that the plaintiff acted in the transaction as the agent of Miller, and for that reason is not entitled to recover; that, if he acted as the agent of the defendant, the promise to pay a commission was for services already rendered, and, therefore, was without a sufficient consideration, and that the verdict is contrary to the evidence. The court charged the jury that, if the plaintiff acted as the agent of Miller in making the exchange, he could not recover on his alleged agreement with the defendant, unless Miller or his agent, Robinson, knew of and consented to it. The plaintiff testified that he was not the agent of Miller in making the exchange; and we are required to determine whether his statement to that effect is sustained by other evidence, or if there is evidence to the contrary, whether there was such a conflict that the jury were justified in finding that the statement of the plaintiff is true.
As has been stated, Robinson had agreed to pay to the plaintiff one hundred and eighty-one dollars and twenty-five cents if he should find a purchaser for the
Two days before the exchange was completed the-plaintiff first disclosed to Robinson the agreement with the defendant in regard to compensation; said that the-defendant refused to pay him; and requested Robinson to hold the two hundred and ten dollars for his benefit. That Robinson refused to do, accusing him of duplicity, and stating that he had always said he was not to receive anything from the defendant. The plaintiff then telegraphed to Miller as follows: “Robinson refuses to pay me any commission for selling your Jennings street property. I shall sue you for regular commission unless paid at. once. Wire answer. Q-eo. W-
It is too clear for serious controversy that plaintiff regarded himself as the agent of Miller, as- well as of the defendant, in making the exchange, and that his statement as awitness to the contrary is in the nature of a legal conclusion, based upon facts which do not sustain it. The statement made in his letter, after being advised by his attorney that he could not recover commission from both parties, is entitled to no weight as showing-that he did not act as the agent of Miller. The evidence also shows that Bobinson supposed him to be acting for Miller., and that neither Bobinson nor Miller had any knowledge of the fact that the plaintiff claimed ■to be acting as the agent of the defendant until after the agreement had been made, and'until plaintiff asked that the tw.o hundred and ten dollars in controversy be withheld from the defendant. The verdict of the jury necessarily involved a finding to the effect that the plaintiff did not act as the agent of Miller in making the exchange, or, if he did so act, that Miller or Bobinson knew of his agreement with the defendant, and
Other questions discussed by counsel depend upon the evidence, and, as that may not be the same upon another trial, they need not be determined. For the reason indicated, the judgment of the district court is reversed.