Ballweber v. Kern
| Decision Date | 21 July 1917 |
| Citation | 164 N.W. 272,38 N.D. 12 |
| Court | North Dakota Supreme Court |
Rehearing denied August 23, 1917.
Appeal from the District Court of Golden Valley County, W. C Crawford, Judge.
Reversed.
Reversed and remanded.
F. C Heffron and Albert H. Hall, for appellants.
When one desirous of selling or trading lands secures the services of a broker by promise of a commission, and such broker procures a purchaser to whom such sale is made, he must pay such broker his commission regardless of whether the actual sale was finally consummated by the broker, or whether the principal took the matter out of the hands of the broker and made sale himself. Northern Immigration Asso. v. Alger, 27 N.D. 467, 147 N.W. 100; Gibson v. Hunt, Iowa , 94 N.W. 277; Reishus-Remer Land Co. v. Benner, 91 Minn. 401, 98 N.W. 186; Hoadley v. Savings Bank, 44 L.R.A. 321 and notes, 71 Conn. 599, 42 A. 667; Hubachek v. Hazzard, 83 Minn. 437, 86 N.W. 426.
The principal cannot so deprive the broker of his commissions. 4 Am. & Eng. Enc. Law, 979, 980.
"After a broker has commenced negotiations for the sale of property, the owner cannot take the matter into his own hands and complete it, either at the price limited or at a less price, and refuse to pay the commissions. Chilton v. Butler, 1 E. D. Smith, 150.
One who destroys evidence in his possession favorable to the other party is presumed to have done so because its introduction into court would be against him. 16 Cyc. 1058.
R. F. Gallagher and Keohane & Jones for respondents.
Fundamentally it is the duty of the court to correct its orders when they have been made under mistake or inadvertence, and this right to do so has always been recognized. United States v. Young, 94 U.S. 259, 24 L.Ed. 153.
An order granting a new trial is an appealable order. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; St. Anthony & D. Elevator Co. v. Martineau, 30 N.D. 425, 153 N.W. 416; Aylmer v. Adams, 30 N.D. 514, 153 N.W. 419.
Where the trial court makes its order improperly denying a motion, such court, on proper application, may review its former order; and if it finds that such original order was entered through mistake or inadvertence, it may correct the same by its further order conforming to the true situation. Clein v. Wandschneider, 14 Wash. 257, 44 P. 272; Burnham v. Spokane, Mercantile Co., 18 Wash. 207, 51 P. 363; Odd Fellows' Sav. Bank v. Deuprey, 66 Cal. 170, 4 P. 1173; Morris v. DeCelis, 41 Cal. 331; Hall v. Polack, 42 Cal. 218; Crosby v. North Bonanza Silver Mill. Co., 23 Nev. 70, 42 P. 583.
The general rule here is that where a motion for a new trial has been granted, the court has power to vacate the order granting the motion, and to enter its order denying the motion, where the showing of mistake, fraud, or inadvertence satisfies the court that an injustice has been done. Grantham v. United States, 28 Ct. Cl. 528; Dawson v. Wisner, 11 Iowa 6; Com. v. Miller, 6 Dana, 315; 29 Cyc. 1028; Beckett v. Northwestern Masonic Aid Asso. 67 Minn. 298, 69 N.W. 923; Spalding v. Meier, 40 Mo. 176; Chandler v. Gloyd, 217 Mo. 394, 116 S.W. 1073; Snow v. Vandeveer, 33 Neb. 735, 51 N.W. 127; Bishop v. Kingston Gas & E. Co., 147 A.D. 920, 131 N.Y.S. 1039; Douglass v. Seiferd, 18 Misc. 188, 41 N.Y.S. 289; Herzig v. Metzger, 62 How. Pr. 355; Newell v. Wheeler, 4 Robt. 190; Magnus v. Buffalo R. Co., 24 A.D. 449, 48 N.Y.S. 490; Fry v. Bennett, 4 Duer, 651; Bloomingdale v. Steubing, 10 Misc. 229, 30 N.Y.S. 1056; Stierle v. Union R. Co., 11 Misc. 124, 31 N.Y.S. 1008; Van Gelder v. Hallenbeck, 49 Hun, 612, 15 N.Y. Civ. Proc. Rep. 333, 2 N.Y.S. 252; Coffield v. Warren, 72 N.C. 223; Huber Mfg. Co. v. Sweny, 57 Ohio St. 169, 48 N.E. 879; Hume v. John B. Hood Camp Confederate Veterans, Tex. Civ. App. , 69 S.W. 643; Watson v. Williamson, Tex. Civ. App. , 76 S.W. 793; Rhea v. Gibson, 10 Gratt. 215; Loveland v. Rand, 200 Mass. 143, 85 N.E. 948; Luke v. Coleman, Ann. Cas. 1913B, 485, note; Bishop v. Kingston Gas & E. Co., 147 A.D. 920, 131 N.Y.S. 1039.
The power at subsequent terms to vacate an order granting a new trial has been sustained. Evans v. Freeman, 149 F. 1020, 86 C. C. A. 216, 159 F. 26; 17 Am. & Eng. Enc. Law, 2d ed. 813; Comp. Laws 1913, § 7350.
The rule established in this state is that the granting or refusing of a new trial is solely within the sound, judicial discretion of the trial court, and its decision will not be disturbed except for a clear abuse of that discretion. Pengilly v. J. I. Case Threshing Mach. Co., 11 N.D. 249, 91 N.W. 63, 12 Am. Neg. Rep. 619; Ross v. Robertson, 12 N.D. 27, 94 N.W. 765; State v. Howser, 12 N.D. 495, 98 N.W. 352; Galvin v. Tibbs, 17 N.D. 600, 119 N.W. 39; St. Anthony & D. Elevator Co. v. Martineau, 30 N.D. 432, 153 N.W. 416; Aylmer v. Adams, 30 N.D. 514, 153 N.W. 419.
"While it may be difficult to define exactly what is meant by abuse of discretion and whatever it may imply as to the disposition and motives of the trial judge, it is fairly deducible from the cases that one of the essential attributes is that it must plainly appear to effect injustice." Clavey v. Lord, 87 Cal. 413, 25 P. 493, 4 C. J. 836, 837.
The action is one by plaintiffs, land brokers, for the recovery of commissions from the defendants for the alleged procuring of purchasers for two certain sections of land in Billings county, state of North Dakota, which the defendants had authority to sell, and which plaintiffs allege the defendants agreed to sell to plaintiffs or any purchaser for such land produced by plaintiffs for the sum of $ 13,800, plaintiffs to have for their commission all they could sell such land for in excess of $ 13,800. Plaintiffs allege that on or about the 15th day of June, 1912, plaintiffs produced and tendered to the defendants a purchaser ready, able, and willing to purchase said real estate upon the terms required by said contract, and who agreed to pay the sum of $ 19,200 for said real estate. That said defendants refused to carry out said contract with the plaintiffs, to the plaintiffs' damage in the sum of $ 5,400.
The answer makes, first, a general denial; and, second, that on or about the 5th day of June, 1912, the defendants in all things revoked and rescinded the authority of the plaintiffs in said contract set forth in said complaint.
The facts in the case are as follows: In the years 1911 and 1912 plaintiffs were real estate brokers living in Minneapolis. Defendant Kern was cashier in a bank at Sentinel Butte, North Dakota, during the year 1911 and until about July 1, 1912. The defendant Hart during said time was a commercial traveler living at Sentinel Butte, North Dakota, and was engaged with Kern to some extent in the real estate business. The amount of land involved, the selling for which commission is demanded, is two sections of land in Billings county, North Dakota. It was owned, not by the defendants, but by some person residing out of the state, the net selling price for which the defendants should account to him being $ 10 per acre. If such land was sold by the plaintiffs for excess over $ 10 per acre, the defendants were to have as their commission $ 1,000, and the plaintiffs to have all over $ 10 per acre plus the $ 1,000 commission to the defendants, as their commission for procuring a purchaser for such land. About May 1, 1912, one of the plaintiffs, Edgerton, brought one Joseph Huber to Sentinel Butte, and together with the defendant Kern looked over the land. No sale was perfected at this time. On June 4, 1912, Ballweber, Huber, and one Dr. Taylor left Minneapolis on a landbuying trip, Dr. Taylor going to Montana, the plaintiff Ballweber and Huber stopping at Sentinel Butte on June 6th, when the land was gone over by Huber, Kern, and Ballweber. Huber did not complete the purchase of the land that day, and returned on the night of June 6th to Minneapolis with Ballweber. The land was sold to the Hubers by the defendants, no notice of such sale being given to the plaintiffs.
The matters involved in this case are considerably involved and difficult of analysis, for the reason that to some extent there is uncertainty as to the issues of the case, and uncertainty as to whether the plaintiffs by their complaint intended to allege a cause of action only concerning the selling of the land in question to one Dr. Taylor, or whether the complaint was broad enough to admit testimony concerning the sale of the land to the Hubers also. The uncertainty of the issues is but little clarified by the bill of particulars, for which demand was made of the plaintiffs by the defendants in the course of such action. A copy of such bill of particulars furnished the defendants by the plaintiffs is as follows:
To the above-named defendants: In compliance with your demand for a bill of particulars, you are hereby advised that the name of the purchaser alleged in the complaint to have been produced by plaintiffs and ready, able, and willing to purchase the real estate described in the complaint upon the terms therein set forth, is Dr. E. A. Taylor, residing at Racine, Wisconsin. You are further advised that the purchaser to whom defendants sold such land in violation of the contract with plaintiffs, to wit, Joseph Huber and Paul Huber, were purchasers procured by and through plaintiffs, all of which facts defendants at all times had full knowledge.
Attorneys for Plaintiffs.
An inspection of such bill of particulars discloses that the purchaser referred to in the complaint was Dr. E. A Taylor. The...
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