Thuner v. Kanter

Decision Date25 September 1894
Citation102 Mich. 59,60 N.W. 299
CourtMichigan Supreme Court
PartiesTHUNER v. KANTER.

Error to circuit court, Wayne county; Cornelius J. Reilly, Judge.

Action by Robert Thuner against Charles E. Kanter. There was a judgment for defendant, from which plaintiff appeals. Affirmed.

William J. Gray, for appellant.

Ed. E Kane, for appellee.

MONTGOMERY J.

Plaintiff sued to recover a commission on a sale of real estate. The circuit judge directed a verdict for the defendant, and plaintiff brings error, alleging that the circuit judge committed error-First, in excluding testimony of plaintiff as to how much money he had expended in advertising the property; second, in admitting testimony of defendant that he had placed the property in the hands of other brokers; third in directing a verdict for the defendant.

1. It was not error to exclude testimony as to expenditures made by plaintiff in advertising. Neither the pleadings, nor the plaintiff's version of the contract of employment, left the case open for any claim under the quantum meruit.

2. While we think the testimony of the plaintiff as to his having placed the property in the hands of other brokers immaterial, it is apparent that the error in the admission of such testimony resulted in no injury to the plaintiff, if the court was right in holding that there was no case made for the jury.

3. The only question which requires extended discussion is whether the circuit judge should have submitted the case to the jury. The declaration contained three special counts. In the first it was alleged in substance that defendant employed plaintiff as a broker to effect, on behalf of said defendant, a sale of the premises in question, and agreed to pay to the plaintiff a commission of $1,000 in case he (the plaintiff) would in a reasonable time procure a purchaser at the price of $20,000; that the plaintiff agreed to use his best efforts to effect such a sale, and, with the knowledge of the defendant, negotiated with several parties in regard thereto; that within a reasonable time after the making of said contract, through the efforts of said plaintiff, said property was brought to the attention of Frank A. Osborn that said Osborn and the defendant, being thus brought together through the plaintiff, negotiated with respect to said property, and that pending the negotiations said plaintiff notified defendant that said Osborn had been procured as a possible purchaser by said plaintiff, and that said Osborn was desirous of purchasing said premises, but was unwilling to pay so high a price as $20,000, and that said defendant, then, in willful disregard of plaintiff's rights, in the premises, did agree to sell said premises to said Osborn at a price named which was less than $20,000; and that said Osborn agreed to purchase the same at such price. And the plaintiff averred that by reason of the premises, and the lowering of said price, under the circumstances, the defendant became indebted to the plaintiff in the sum of $1,000. The second count averred that defendant employed plaintiff at the agreed price of $1,000 to furnish a purchaser at a price satisfactory to plaintiff, and alleges that the purchaser and defendant were brought together by plaintiff's efforts, and a sale at a price satisfactory to defendant was made, and claims the agreed compensation. The third count is the same in substance as the second except that it avers that plaintiff's employment was at a reasonable commission. There were appended the common counts, and a bill of particulars was filed, which limited plaintiff's claim to one "for services in procuring a purchaser of stores 420 and 428, Michigan avenue, one thousand dollars."

Under the state of the pleadings, we think the only question for trial was whether the plaintiff did in fact procure a purchaser, either at $20,000, or at a price satisfactory to the defendant. Each count avers that the purchaser was procured by the...

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