Ball v. Dolan

• Decision Date: 05 February 1908
• Citation: 114 N.W. 998,21 S.D. 619
• Parties: BALL v. DOLAN.
• Court: South Dakota Supreme Court

114 N.W. 998

21 S.D. 619

BALL v. DOLAN.

Supreme Court of South Dakota

February 5, 1908

Appeal from Circuit Court, Brown County.

Action by Frank C. Ball against Charles R. Dolan. From a judgment for defendant, plaintiff appeals. Affirmed.

Fuller J., dissenting.

Hanten & Loucks, for appellant.

L. W Crofoot, for respondent.

CORSON J.

This is an appeal by the plaintiff from a judgment upon a directed verdict in favor of the defendant. The case was before us upon a former appeal taken from a judgment in favor of the plaintiff, and is reported in 18 S.D. 558, 101 N.W. 719. The facts are so fully set out in the opinion on that appeal that a further statement of them does not seem to be necessary except to say that after the remittitur was sent down to the circuit court the plaintiff on application was permitted to amend his complaint by making it an action for the value of his services instead of an action upon the special contract. At the close of the evidence the attorney for the defendant made the following motion: "We ask the court at this time to instruct the jury to return a verdict for the defendant upon the following grounds: First, that as the evidence now stands upon the undisputed testimony of the plaintiff and his witnesses the only agreement for the employment of the plaintiff for the sale of this land shows an express contract to sell these lands at $9 per acre in consideration of which Mr. Ball was to receive a commission of $1 per acre, and the undisputed evidence shows that Mr Ball never produced a purchaser who was ready, willing, and able to purchase said lands at the price of $9 per acre; second, because the undisputed evidence shows that the contract which was made between the parties in regard to the sale of the land on August 29th embracing nineteen (19) quarter sections of land was at the price of $7.84 per acre, and the final agreement consummated for the sixteen quarter sections of land was at the price of $8 per acre; third, for the reason that as the undisputed evidence showing that the only contract is an express contract which has not been performed by the plaintiff there can be no recovery upon the quantum meruit for the reason that there is no evidence to justify any findings that the services of plaintiff resulted in any benefit to the defendant"-which was granted by the court, and subsequently a motion for a new trial was made and denied.

It is contended by the appellant (1) that the plaintiff was defendant's agent; (2) that the plaintiff found a purchaser for all the land; (3) that the plaintiff assisted in making the sale of the land which was made by the defendant to the purchaser; *** (6) that the defendant took the matter of sale of the lands into his own hands, fixed the price per acre, and sold the land at prices acceptable to him; (7) that the prices of the lands purchased and agreed to be purchased were fixed by the defendant exclusively; (8) that the prices were changed, and that the defendant failed to deed or transfer the 20 quarter sections to the purchaser whom the plaintiff procured; (9) that all of these dealings were had in the presence of said plaintiff, and that plaintiff assisted in making the said deals; that the said agency was at no time terminated, and that negotiations for the sale of the said lands were not carried on by the said defendant without the aid of said plaintiff; and the plaintiff therefore claims that, notwithstanding his failure to comply with the terms of the written contract, he was entitled to recover in this action for the value of his services so rendered, and that such services were of the value of $1 per acre. Assuming for the purpose of this decision that the evidence sustained the foregoing contention of counsel for plaintiff, we are unable to discover any theory upon which the plaintiff would be entitled to a verdict in this action. While it may be conceded that the plaintiff was present when the contract was entered into by the defendant for the sale of the land and assisted the defendant in making such sales, the fact clearly appears from the evidence that such sales were made for a price not in excess of $8 per acre, and plaintiff offered no evidence proving or tending to prove that the defendant received any benefit from his presence at the sale or by reason of his participation therein. While it is true that in a certain class of cases parties have been allowed to recover on quantum meruit where the defendant has received a benefit from plaintiff's services, and therefore in equity required to recompense plaintiff for such service, that principle has no application to the case at bar. Such recovery is allowed upon the theory that justice is done between the parties if the defendant is compelled to pay for the value of the services received less the loss sustained by him by the failure of the plaintiff to complete his contract.

In discussing this subject, Mr. Sutherland, in his work on Damages, says: "The requirement to fulfill the precedent condition to do the entire work for which an entire sum is promised to be paid results as a logical conclusion from such a contract. It is thus derived from the supposed intention of the parties because they are held to mean what the contract, thus expounded, requires. What is done short of full performance being referable exclusively to the contract, there is no operative promise to pay for it. The express promise excluding any other, and not itself available until all the work is done. There is no defect in the logic of this rule; and it may be said that, as it never applies except to carry out the intention of the parties, it is not to the rigor of the law, but to the improvidence of the contract, that any hardship of individual cases must be ascribed. *** Formerly this logic was law, invariably enforced. The intention of the parties, deduced from a construction of their contract, was the iron rule and law of the contract, not dispensable, or subject to any legal evasion or mitigation." 2 Sutherland on Damages, p. 456. But that learned author on page 466 says: "Where a party fails to comply substantially with an agreement, unless it is apportionable, the rule is well settled that he cannot sue upon the agreement or recover upon it at all, and under the strict common law he was remediless. But the doctrine has now grown up, based upon equitable principles, that, where anything has been done from which the other party has received substantial benefits, a recovery may be had upon a quantum meruit, based on that benefit." The law, however, as applicable to real estate brokers is stated by the Court of Appeals of New York in Sibbald v. Bethlehem & Company, 83 N.Y. 383, 38 Am. Rep. 441, as follows: "It follows as a necessary deduction from the established rule that a broker is never entitled to recover his commissions for unsuccessful efforts. The risk of failure is wholly his. The reward comes only with his success. That is the plain contract and contemplation of the parties. The broker may devote his time and labor and expend his money with ever so much of devotion to the interests of his employer, and yet, if he fails, if without effecting an agreement or accomplishing a bargain he abandons the effort, or his authority is fairly and in good faith terminated, he gains no right to commissions, he loses the labor and effort which he has staked upon success."

In the late case of Ames v. Lamont, 107 Wis. 531, 83 N.W 780, the Supreme Court of Wisconsin, in discussing an analogous question to the one at bar, says: "Appellants, however, seek to avoid the rule of McArthur v. Slauson, 53 Wis. 41, 9 N.W. 784, by abandoning the express contract and suing upon an implied contract to pay the reasonable value of their services in...