24 S.D. 241 | S.D. | 1909
This case is before us on appeal by the defendants from a judgment entered in favor of the plaintiff and order denying a new trial. The action was instituted by the plaintiff to recover for services rendered by him as a real estate agent. The plaintiff’s complaint is as follows: “That on or about the rst day of January, 1907, he entered the service of the defendant corporation for the purpose of selling lands in Alberta, Canada, which agreement was fully set forth in a written instrument as follows: ‘O. W. Kerr, president and general manager of the O. W. Kerr Co., Minneapolis, Minnesota, party of the first part, hereby appoints T. C. Wyckoff of Aberdeen, state of South Dakota, party of the second part, as • agent, to solicit purchasers of land listed and owned by the O. W. Kerr Co., in the following territories: Alberta, Canada, and Texas. For all buyers secured by him, T. C. Wyckoff. It is hereby agreed, as follows: (1) For services rendered in sales of land made by the assistance of the second party, said party of the first part agrees to pay to the said party of the second part, $1.00 per acre on all sales so made, no commission to be earned until sale is fully and completely closed by delivery and acceptance of deeds or .contract. Commissions on exchanges shall be agreed to by and between the first and second parties before the trade is consummated, otherwise shall be on the basis of agreed commission. (2) Said second party agrees to devote as much time as possible in the representation of said O. W. Kerr Co., and will do all distributing of advertising matter possible, furnished by the first party, and will further advertise in local papers at the' expense of the second party. (3) Second party is to use his best endeavors to dispose of property taken in exchange and no extra compensation shall be allowed for such efforts. (4) Said second party agrees that he will represent no other firm than the O. W. Kerr Co., in the sale of Canada lands during the term for which
The answer of the defendants is as follows: “The defendants herein for their answer to the complaint of the plaintiff
The errors assigned are the insufficiency of the evidence to justify the decision of the court, in that it fails to sustain the second finding of fact that the plaintiff secured J. J. Stehly and N. W. Stehly as purchasers of the land in question, but, on the other hand, the evidence shows and establishes that one Matthias Weichselbaum was the procuring and efficient agent in securing said parties as purchasers of said land; second, errors in the law, in that the court erred in sustaining plain-tiff’s objections to certain questions that will be referred to hereafter, and in denying defendant's’ motion for a new trial.
It is disclosed by the evidence that a sale of the 320 acres of land was made by the defendant to the two parties named, and
Lt is contended by the appellants that: “The primary obligation the agent assumes is to bring • the buyer and seller together so that their minds shall meet upon a common basis. These contracts are subject to- the elementary rule applicable to contracts generally, that, before a party can recover, he must have fulfilled his part of the contract. There is nothing peculiar in this respect as applied to a land broker’s contract. Success is the condition upon which a right of recovery is based. It matters not how much time, labor, expense, or worry the agent may have devoted to' finding and securing a buyer, if he does not succeed in finding and producing one with whom the principal can -agree as to the terms of sale, all his efforts and expense go for naught. 1 le stakes all on success in finding and producing the right one, and, as a part of the risk, he takes the chances of others availing themselves, in a measure, of the fruit of his toil and expenses.” We cannot agree with counsel in this contention. The contract in this case, it will be observed, is a peculiar one, and differs very materially from the usual contract entered into where an agent is employed to sell a certain tract of land at a specified sum and within a limited time. The law in such cases is well settled in this jurisdiction that the agent in such case must produce a purchaser able, ready, and willing to purchase the property upon the terms specified and within the time limited in order to entitle him to his commission, but the law governing that class of cases is not applicable to the case at bar. It will be observed that the language of the contract in this case is that the plaintiff “for services rendered in sales of land made by the assistance of the said second party, said party of the first part agrees to pay to the said party of the second part $1.00 per acre on all sales so made.” The contention of the appellants, therefore, that, in effect, this clause of the agreement should be construed as requiring that the sale should be made solely by -the efforts of the plaintiff, is not sustained by the terms of the contract. In our opinion, under the terms of this contract, it was not necessary that the sale
It is further contended by the appellants that the words in the first of the contract “for all buyers secured by him, T. C. Wyckoff,” is controlling as' to the terms of the contract, for the reason that it was written in, and not printed, But in our opinion there is no merit in this contention, and, that the terms of the contract being clear, and unambiguous, the construction evidently placed upon it by the trial court that it only required of the plaintiff that he assist in the sale of the lands is the true and proper construction to -be given the contract, and that the words ‘‘for all buyers secured by him, T. C. Wyckoff,” in our opinion does not materially qualify the terms of the contract.
It is further contended by the appellants that the court erred in sustaining the objections to certain questions propounded to the
Finding no- error in the record, the judgment of the circuit court and order denying a new trial are affirmed.