Albers v. Ziegler
| Decision Date | 19 May 1949 |
| Docket Number | 32606. |
| Citation | 37 N.W.2d 590,151 Neb. 408 |
| Parties | ALBERS v. ZIEGLER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The findings of a court in a law action have the effect of a verdict of a jury and will not be interfered with unless they are clearly wrong.
2. The weight of evidence or credibility of witnesses is not a concern of this court in the review of such a case except to determine that the findings and judgment are supported by evidence and are not contrary to law.
3. Whether a broker is the procuring cause of a sale is generally a question of fact for the jury, the decision in each case being dependent upon the particular facts and circumstances thereof.
Carl F. Benjamin, Omaha, H. V. Kanouff, Wahoo, for appellant.
E S. Schiefelbein, Wahoo, Joseph L. Pallat, Wahoo, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL WENKE, and BOSLAUGH, JJ.
Henry J Albers brought this action in the district court for Saunders County against Guy Ziegler. The purpose of the action is to recover a real estate broker's commission in the sum of $1,250. The basis for recovery is the sale of a locker plant, ice, ice cream, and creamery business located in Ashland, Nebraska, together with the real estate upon which the business is located. Upon trial a jury was waived. The trial court found for the defendant. The plaintiff appeals from the overruling of his motion for new trial.
With reference to the court's findings we most recently stated the applicable rule as follows: Foltz v. Brakhage, 151 Neb. 216, 36 N.W.2d 768, 770. See, also, Gee v. City of Sutton, 149 Neb. 603, 31 N.W.2d 747, and Bell v. Stedman, 88 Neb. 625, 130 N.W. 257.
The parties will be referred to as they appeared in the trial court.
The plaintiff was a licensed Nebraska real estate broker with his place of business located in Omaha, Nebraska. Defendant was the owner of a locker plant, ice, ice cream, and creamery business located in Ashland, Nebraska, together with the real estate upon which this business is located. This will be herein referred to as the business.
Defendant desired to sell this business. Commencing about the first of April 1945, he started to advertise that it was for sale. He advertised in many trade journals and numerous large daily newspapers. Most of these ads carried the name of the owner and location of the property. Although he had some prospects he did not find a satisfactory buyer and consequently did not make a sale of the property by the first of December of that year.
On December 1, 1945, defendant entered into an agency agreement with the plaintiff, listing this business for sale on terms as therein stated. This agency agreement provided a follows: 'The undersigned * * * in consideration of your agreement made with us to list and offer said property for sale, at your own expense, do hereby give and grant to you the sole and exclusive agency and right to sell and/or contract in our name to sell said property at the price and on the terms hereinafter stated, for the period of 60 (days) from the date hereof, * * * If during the contract period aforesaid we sell said premises directly, or through others, or if within twelve months after the expiration of this listing contract we make a sale of said premises to any one originating through your efforts or advertising done under this listing we agree to pay you the aforesaid commission.'
On February 9, 1946, the defendant sold the business to Jack Fickler of Wayne, Nebraska, for the sum of $24,500. The purchaser took possession thereof on February 11, 1946.
As stated in 8 Am.Jur., Brokers, s. 172, p. 1088: 'When a broker is the procuring cause of a sale, is a question of considerable difficulty; in the main it is a question of fact for the jury, the decision in each case being dependent upon the particular facts and...
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