Allgood v. Fahrney
| Decision Date | 24 March 1914 |
| Parties | ALLGOOD v. FAHRNEY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; Henry Silwold, Judge.
Action to recover commission for the sale of real estate. Affirmed.W. H. Keating, of Oskaloosa, for appellant.
Reynolds & Davis, of Oskaloosa, for appellee.
It appears that the defendant was the owner of certain property in the city of Oskaloosa; that the plaintiff was engaged in the real estate business; that some time during the month of May, 1912, the defendant listed his Oskaloosa property with the plaintiff, under an agreement between them that, if the plaintiff would procure some one who would purchase defendant's property or would exchange other property for defendant's property, on terms satisfactory to the defendant, the defendant would pay the plaintiff a commission therefor; that plaintiff found one Peppers, who owned a farm in Monroe county consisting of 210 acres; that the plaintiff took the defendant down to look at that farm; that the defendant did go down and look at the farm, in company with the plaintiff; that at the time the plaintiff told the defendant that there was a mineral right or coal lease on the land in Monroe county; that, after the defendant had looked the land over, he told the plaintiff that he wanted his wife to see it before anything was done; that the defendant looked the land over at that time, and expressed himself as satisfied with it, but returned to his home without making any contract with Peppers for the purchase of the land; that thereafter he was taken sick, and was sick for some time; that in the month of September following plaintiff again approached the defendant for the purpose of making a trade with Peppers for the land in Monroe county, and took the defendant and his wife down and showed them the land. There is no controversy in the case as to the amount which defendant was to receive for his property in exchange, and the amount that Peppers was to receive for his land. Defendant placed his property at $20,000. The price of Peppers' farm was fixed at $31,500, leaving a difference of $11,500 to be paid by the defendant to Peppers on the exchange.
On the trial plaintiff testified, substantially, as follows: “Defendant said to me: I told him I thought I might get him a trade for the Peppers farm. I gave him a description of the place, told him I would see if Peppers would trade, and, if he would, I would let him know. So I called Peppers up over the phone, told what it was, where it was, and that he (Peppers) knew the place; and he said he would consider a trade. I told Fahrney that Peppers would trade. I also told him: ‘There is a mineral right against that farm, but it has been sunk on and dug, and has been abandoned.’ I knew the place over in there for about 13 years. I and him went to Eddyville on the train, took a livery team, and drove out to Peppers', looked the farm over, and I asked him what he thought of it. He says: ‘It is lots better than I expected, and better than you represented it.’ I showed him where the shafts was, and told him this mineral right was there. Mr. Peppers told him the mineral right was there, and showed him where it had been dug out, and where the shafts was situated on the place, the piles of slack, and where the tram road was. We talked trade. Mr. Fahrney wanted his wife to see the place, but she wasn't able to go, and, as his wife wasn't able to go, the matter kept hanging. And Peppers says: ‘I don't believe there is any use to wait on that Fahrney deal; I will just call it all off.’ I told Mr. Fahrney that the deal was called off; this was the middle of May. Along in September I was down past Fahrney's feed yard, and he says, ‘My wife is able to go and see the farm,’ and I said, ‘If you want to trade the way we talked of when we was over there, the price, and Peppers will trade.’ I says, ‘I will let you know.’ So I * * * went to the telephone, and called Mr. Peppers up, and talked to him over the phone, and told him the reason Mr. Fahrney couldn't do anything before was on account of his wife's health. Mr. Peppers said, ‘I will give him one more trial.’ We went over in an automobile, Mr. Fahrney, his wife, and I, with Mr. Spavin, from Oskaloosa. When we arrived at the farm, Mr. Fahrney says: ‘The farm looks better to me than at first.’ Then we took the wife in the automobile, and we went down the road where she could see all over the place, and we talked there, he and his wife between themselves (we was all in the automobile); and Mr. Spavin said for them to sit in the automobile, and Peppers, I, and Spavin left them sitting there, and we went away. Later Mr. Fahrney [defendant] called me to one side and asked if I expected a commission, and I said, ‘If you are not going to pay me a commission, this deal will never go through.’ I said, ‘That is what I am working for;’ and then he says, ‘I will tell you; I cannot trade the way Peppers wants to trade.’ The way the trade was to have been first, when we talked at the automobile, Peppers was to get possession of the feed yard the 1st of October, and he was to keep all of the crop, and Mr. Fahrney to take possession of the farm the 1st of October, with the exception of the crop that was on it. Mr. Fahrney says to me, ‘I cannot do that;’ he says, ‘I will give him the feed yard, and he would get profit on that, and I would have to take the farm, and get nothing out of it until I raised a crop;’ and he says, ‘I couldn't do that.’ I talked with Peppers, and the latter agreed to give Fahrney one-half of the 90 acres of hay, which was bound in the field, when it was threshed, and one-half of the 60 acres of corn on the place, the land being farmed by a tenant, and there being 90 acres of hay being cut and bound, and 60 acres in corn, which Mr. Peppers was to receive from the tenant, one-half of each. I told Fahrney what Mr. Peppers would do, and he says: ‘That changes things; that is all right.’ We went to the house for dinner, which was not quite ready, and Mr. Fahrney asked for a measure to measure the rooms for sizes of carpets, and talked about buying the carpet on the stairs, and a large range stove. I wanted to go to Albia that afternoon and draw up the contract, and he says, ‘Well, I will tell you; I have got nobody left at the yard but a little boy;’ and he says, ‘I never made any arrangement for his dinner.’ He says, ‘I want to get back just as soon as I can;’ and he says, ‘You come over in the morning, and we will draw up this contract.’ Mr. Peppers came the next morning on the 7 o'clock train, and we went to the feed yard, spoke to Fahrney, told him we were ready to draw up a contract, and he says, ‘While sitting here last night at 10 o'clock it came to me, if I wanted to sell that place, the mineral right would be a hindrance.’ So we left him, and we went back several times. Fahrney's only kick was the mineral right.”
Peppers, called as a witness for the plaintiff, testified substantially the same as the plaintiff, touching what was done and said regarding the trade, and further testified that all the terms of the exchange were agreed upon between him and the defendant, and that, when the defendant left after dinner, he said to Peppers, “You will be over tomorrow morning and draw up the contract as we have agreed upon for this farm,” and I says, “Yes.” I came over to draw the contract, and he said that he thought during the night that the mineral right might hinder him in disposing of the land. I was, at the time, ready, able, and willing to carry out my part of the contract.”
He further testified that the trade was made there on the farm; that the defendant did not ask for longer time to consider the matter; that all was agreed upon except reducing it to writing, and it was agreed that that should be done the next morning; that they were to furnish abstracts, but that the defendant was to take it subject to the coal lease; that he was to accept the land subject to the coal lease; he was to accept the land with the coal lease on it. ”
The defendant, testifying for himself, testified: “I know Mr. Allgood who came to me about the middle of May, 1912. I was working in my barn putting in a screen door. He told me about a farm in Monroe county. We talked about exchange, and I told him I would go and see the farm. He mentioned a coal or mineral lease of some kind, and I never lived in a mineral district, and I didn't think much about it. I didn't know anything about it, as I lived in Northern Iowa, and they didn't have coal mines there. He explained to me that there was nothing that would hinder, as the coal was all mined out, and he took quite a little time explaining to me that it wouldn't interfere with anything, the coal being all mined out, ‘before we ever went to see the farm,’ and I asked the question whether that would hinder giving a clear title. We used the word ‘clear title’; didn't use the word ‘merchantable title’; I was to furnish him a clear title to my property. A clear title we talked; didn't use the word ‘merchantable title.’ We were to furnish clear titles to them. And he explained that to me at the time--very satisfactory at the time--that the coal lease was nothing that would interfere. So we went to see the farm. The farm is practically the same as stated by Mr. Allgood. I went and looked the farm...
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