Ball v. Davenport

• Citation: 170 Iowa 33,152 N.W. 69
• Decision Date: 09 April 1915
• Docket Number: No. 30141.,30141.
• Parties: BALL v. DAVENPORT.
• Court: United States State Supreme Court of Iowa

170 Iowa 33

152 N.W. 69

BALL

v.DAVENPORT.

No. 30141.

Supreme Court of Iowa.

April 9, 1915.

Appeal from District Court, Keokuk County; Henry Selwold, Judge.

Action to recover $350 for alleged services in procuring a contract for the exchange of property. The contract was got, but the properties were not exchanged. Under the record, one Billick, the person who contracted with defendant for the exchange, was in default for failing to furnish such an abstract as the contract required, and it has been adjudicated that, on account of such default, he could not compel this defendant to perform. The verdict of the jury awards plaintiff the full amount of his claim, and defendant appeals. Affirmed.Stockman & Baker, of Sigourney, for appellant.

Wagner & Updegraf and Hamilton & Beatty, all of Sigourney, for appellee.

SALINGER, J.

[1] I. Much of which defendant complains is presented by exceptions to the overruling of a motion by defendant that verdict be directed for him. Appellant did not stand upon this motion. He introduced testimony after the motion was overruled, and did not renew same at the close of all the testimony. It is settled in this court that this waives the motion, and that therefore no error involved in denying same is available on this appeal.

[2][3] II. The ultimate dispute is this: Plaintiff claims that his commission was due at the time when he got the parties to sign a contract to exchange. Defendant insists that none was due until the exchange stipulated for was actually consummated on the terms of the signed contract, and that failure to consummate it is wholly due to the fact that Billick was either unable or unwilling to perform, or both.

In talks had in October, 1912, and before anything was reduced to writing, a 1 per cent. commission, amounting to $350 was agreed on, and it is admitted it is not a commission for a sale, as distinguished from an exchange. Whatever conflict there may be is as to the contention of the appellant, testified to by him, that plaintiff was not to have such commission until after a satisfactory exchange of lands was actually consummated. For this position it is pointed out:

(1) That at the outset plaintiff asked whether defendant “would consider an exchange for his farm here for a farm in Kansas,” and that defendant said he “might consider such an exchange, depending upon the location of the farm there.”

(2) That defendant asked what commission he would charge “for handling the deal.”

(3) The following testimony of the plaintiff:

“Q. And he asked you what commission you would charge for the exchange if you made one? A. Yes, sir; he asked what commission I would charge for handling this deal, and I said as much as it was a trade I would only charge him 1 per cent. Plaintiff asked me how much I would charge for handling the deal.”

(4) The wife of the plaintiff says defendant told her he would do nothing with another, who wanted 2 per cent. “for making the exchange,” until he heard from plaintiff, “on the Kansas deal.”

(5) After these talks between the parties, and before November 25th, the defendant signed a writing which recites that “the parties hereto have agreed upon an exchange of real estate.” But this statement throws no light on the dispute, because the fact that an exchange had been agreed on leaves it open whether pay was to be got for obtaining such contract, or for obtaining the exchange stipulated for in the contract.

Up to this point there is some reason to claim that the evidence fails to support the theory that commission was to be paid for the mere getting of the contract.

So far as it is material in the aforesaid suit, this writing provides that, in the exchange of deeds, each party is to deliver to the other “a merchantable abstract of record,” showing title in each grantor, and that the contract shall not be binding on defendant, unless on or before December 5, 1912, he, after examining the condition and reasonable value of the Kansas land, approve the contract by signing a ratification written on the contract. At the suggestion of plaintiff, a clause was inserted that, if defendant does so approve, he agrees to pay plaintiff $350 for his services as agent “in the consummation of said deal.” After such investigation, de-defendant signed the following ratification:

“November 25, 1912.

I, George W. Davenport, having made investigation with reference to the condition and reasonable value of the 480 acres of Kansas land described in the foregoing contract, do hereby ratify and approve said contract and the terms and conditions thereof.”

The answer of defendant, in so far as relevant here, asserts merely that by valid contract it was actually understood and agreed that no commission was due until the exchange “was fully made and completed,” and that “the alleged ratification and approval of said alleged contract referred to in plaintiff's substituted petition was secured, if at all, at and with the undue request and solicitation of the plaintiff.” There is no evidence upon the claim of undue influence, except that, when it came to signing the ratification, plaintiff asked defendant what he was going to do, and defendant hesitated and hung back for a little while; and the whole record indicates that defendant is not claiming to have been unduly influenced into an unsatisfactory agreement, but is defending because the owner of the Kansas land did not comply with the agreement into which defendant did enter.

III. It is apparent the real controversy begins with the writing done in Iowa, and involves some later writing done in Kansas. And, as we view it, the controlling question is whether the trial court erred in its treatment of said writing. The first part of a continuous clause therein is that certain things shall be done by defendant “in the event of the approval of said contract” by defendant. After thus stating that what he agreed to depended on this approval, he adds what he is to do in event of approval, to wit, to pay plaintiff $350 “as compensation for his services as their agent in the consummation of said deal.” The essential claim of defendant is that the trial court should have disregarded the part of the clause which makes approval a condition precedent to payment; that it should have read the writing as though it merely agreed to pay for services in consummating “said deal,” and should have charged that, as matter of law, the word “deal,” as here used, refers to the consummation of an exchange, and not to the obtaining of a completed contract obligating the parties to exchange. Passing whether the charge complained of was so excepted to as to present what appellant here complains of, the instructions refused and those given clearly exhibit the difference between the theory of the court and that of defendant.

The offered instructions proceed on this line: No. 16 charges that the undisputed evidence shows plaintiff was to be paid on the “consummation of said deal,” and that this means the actual exchange of the properties; No. 2 that the performance of the contract means the completion of the exchange; Nos. 3, 11, and 17 that plaintiff cannot recover if the contract to exchange was not in fact carried out. No. 4 urges that plaintiff cannot recover if Billick could not or would not perform. Instruction No. 10 given by the court instructs that the meaning of the word “consummation” depends upon how and in what connection it is used; that the consummation of the contract is reached when all has been performed which the contract requires; and that here, if the contract was that plaintiff was to be paid when the contract between the defendant and Billick was signed and approved by defendant, then such signing and approval was a consummation, but that, if it was the contract that no payment should be made until the deal was fully consummated by the execution and exchange of deeds, then the contract between the parties would not be consummated until such deeds were executed and delivered. An exception to this instruction urges that the word “consummated” should be construed according to the context and approved use of the language, and that the instruction fails so to construe it; that there is no evidence whereon to base the definition attempted by the instruction, and no evidence to show that the word was used in any other than the ordinary and usual way, form, and manner. Instruction No. 5, given, directs the jury that plaintiff cannot recover if he was not to be paid “until deeds had been executed,” but could recover without that if he was merely obliged to obtain a contract, instead of the performance of the contract. No. 9 declares that the default of Billick is established, and that therefore plaintiff has not earned his commission, if performance of the contract was required, but that, if the agreement was to pay a commission for obtaining the signing and approval of the contract (Exhibit A), then the default of Billick was wholly immaterial.

It is manifest the court took the position that it was a question of fact what the parties meant by the words “consummation of said deal”; that, if the jury found it referred to the obtaining of the contract, plaintiff must recover; and that, if it found it referred to actually consummating an exchange of properties, the plaintiff could not recover. It was the theory of defendant that the words “consummation of said deal,” as a matter of law, referred to the consummated exchange of properties, instead of obtaining the signing and approval of the contract.

In support of the position taken by defendant in offering instructions and excepting to instructions given, it is stated in varying ways that the deal referred to in the writing was an exchange of property; that nothing else is the subject of the contract; that these words, as a matter of law, refer to the consummation of the exchange; that the court should have so charged; that any other theory is unnatural and strained; that...