Barber v. Hildebrand

• Decision Date: 17 October 1894
• Docket Number: 5504
• Citation: 60 N.W. 594,42 Neb. 400
• Parties: JOHN M. BARBER ET AL. v. JULIA A. HILDEBRAND ET AL
• Court: Nebraska Supreme Court

60 N.W. 594

42 Neb. 400

JOHN M. BARBER ET AL. v. JULIA A. HILDEBRAND ET AL

No. 5504

Supreme Court of Nebraska

October 17, 1894

ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.

AFFIRMED.

Talbot & Bryan, for plaintiffs in error:

Everything talked of before the written contract was signed was merged in that contract, and the court erred in allowing witnesses to testify, over plaintiff's objections, to matters previously discussed. (2 Parsons, Contracts, pp. 679, 680; Kain v. Old, 2 Barn. & C. [Eng.], 627; Mumford v. M'Pherson, 1 Johns. [N. Y.], 414; Hamilton v Thrall, 7 Neb. 210; Mills v. Miller, 4 Neb 441; Dodge v. Kiene, 28 Neb. 216.)

The contract between the two principals was binding in law. (1 Parsons, Contracts, p. 6; 3 Am. & Eng. Ency. Law, 41; Baker v. Kansas City, St. J. & C. B. R. Co., 3 S.W. [Mo.], 486; McGavock v. Woodlief, 20 HOW [U S.], 221; Kock v. Emerling, 22 HOW [U. S.], 69; Sibbald v. Bethlehem Iron Co., 38 Am. Rep. [N. Y.], 444.)

There was no condition outside of the contract binding upon the parties, and the verdict is contrary to instructions. (Goss v. Stevens, 32 Minn. 472; Middleton v. Findla, 25 Cal. 76; Barnard v. Monnot, 3 Keyes [N. Y.], 203.)

The broker earned his commission when he procured parties to sign the contract introduced in evidence which was acceptable to themselves. (Barnard v. Monnot, 3 Keyes, [N. Y.], 203; Love v. Miller, 53 Ind. 294; Pearsen v. Mason, 120 Mass. 53; Leete v. Norton, 43 Conn. 219; Knapp v. Wallace, 41 N.Y. 477; Cook v. Fiske, 12 Gray [Mass.], 491; Glentworth v. Luther, 21 Barb. [N. Y.], 145; Doty v. Miller, 43 Barb. [N. Y.], 529; Shepperd v. Hedden, 29 N.J.L. 341; Lincoln v. McClatchie, 36 Conn. 136; Mooney v. Elder, 56 N.Y. 238; Higgins v. Moore, 34 N.Y. 424.)

The broker is not a guarantor of title and the court erred in allowing the abstract to the property in controversy to be introduced in evidence. (Doty v. Miller, 43 Barb. [N. Y.], 529; Moses v. Bierling, 31 N.Y. 462; Glentworth v. Luther, 21 Barb. [N. Y.], 147; Van Lien v. Byrnes, 1 Hilt. [N. Y.], 134.)

Thomas C. Munger, contra:

Reference was made in argument to authorities as follows: On first point made by plaintiffs in error: Morrissey v. Schindler, 18 Neb. 672; Oberfelder v. Kavanaugh, 29 Neb. 430; Palmer v. Witcherly, 15 Neb. 100; Stevenson v. Anderson, 12 Neb. 83; Wright v. Greenwood, 7 Neb. 435; Norman v. Waite, 30 Neb. 302. On second point made by plaintiffs in error: Fraser v. Wyckoff, 63 N.Y. 445. On third point made by plaintiffs in error: Delaney v. Linder, 22 Neb. 274.

The brokers would not be entitled to a commission under the contract, and Hildebrand was not liable, until the condition for furnishing an abstract showing a perfect title was performed. (Fraser v. Wyckoff, 63 N.Y. 445; Rockwell v. Newton, 44 Conn. 333; Pierce v. Truitt, 12 A. [Pa.], 661; Hyams v. Miller, 71 Ga. 608; Ward v. Cobb, 148 Mass. 518.)

The rule that a broker is entitled to his commissions when he has made a contract between the parties is limited to contracts binding the parties, and of which the courts will decree a specific performance. (Ward v. Cobb, 148 Mass. 518; Love v. Miller, 53 Ind. 294; Rice v. Mayo, 107 Mass. 550.)

Specific performance will not be decreed where the vendor's title is defective. It must be free from reasonable doubt. (Pomeroy, Equity Jurisprudence, sec. 1405; Maxwell, Pleading and Practice, 630; Bensel v. Gray, 80 N.Y. 517.)

OPINION

The facts are stated by the commissioner.

IRVINE, C.

Barber and Fowler, the plaintiffs in error, sued Julia A. Hildebrand and Fred Hildebrand, her husband, for $ 250, alleged to have been earned by the plaintiffs as brokers in effecting an exchange of real estate for the defendants. There was a verdict and judgment for the defendants which the plaintiffs seek to reverse. Thirty errors are assigned. In argument the plaintiffs in error do not treat them separately, but discuss several general propositions, to one or another of which each of the assignments of error relates. We shall pursue the same course.

Mrs Hildebrand was the owner of certain real estate and personal property in Lancaster county, and of what the parties style a "relinquishment of filing" on certain land in Holt county. There is no doubt that there was some arrangement made with the plaintiffs, who were real estate brokers, to obtain an exchange of this property. It is equally clear that through the efforts of the plaintiffs a contract, the nature of which will be hereafter referred to, was entered into between the Hildebrands and one Wright, whereby Wright was to exchange for the property certain hotel property in Shenandoah, Iowa. It further appears that the contract was not carried into effect and the exchange was never in fact made. The plaintiffs contend that their duties were discharged and their commissions earned when they produced Wright, able and willing to make the exchange on terms fixed by Hildebrand. The answer of Fred Hildebrand was a general denial. The evidence clearly showed that he was merely agent for Julia. The court instructed a verdict in his favor, and we do not understand that the plaintiffs now complain of that action. The defenses of Julia Hildebrand were: (1) A denial of the contract with Wright, set out in the petition; (2) that the contract between her and the plaintiffs was that no commission should be paid except upon an exchange made upon terms fixed by her, and upon the consummation of the exchange to the satisfaction of both parties by the delivery of deeds; (3) that one of the terms of Mrs. Hildebrand's contract with plaintiffs was that any purchaser must produce an abstract of title of the property to be exchanged showing perfect title, and that unless perfect title should be shown by such abstract, no exchange should be effected and no compensation paid plaintiffs; (4) that Wright's property was not as represented, either as to incumbrances or description. The contract between Wright and Hildebrand described the property to be exchanged and stated the price, and then concluded as follows: "Each party furnishing abstract showing perfect title and deeding property with good and sufficient warranty deed. * * * Second party reserves the right to see said property again, and if property is not as represented, then this contract to be void, otherwise in full force and effect. Each party agrees to pay one-half commission on said deal, commission to be $ 500." This was signed by Wright and by "Julia Hildebrand, by Fred Hildebrand." Below the signatures was the following: "This is to certify that I have examined said property in the within contract and find same as represented, and this day accept same." This last sentence was subscribed by Julia Hildebrand. The evidence was conflicting as to whether she signed her name below this statement, knowing it was there, or whether she subscribed the contract and this statement was thereafter written above her signature. For the purpose of considering the questions presented for review this question is not very important.

The first proposition of the plaintiff in error is that all oral negotiations were merged in the written contract, and that the court erred in allowing witnesses to testify as to such oral negotiations. An examination of the record and of the assignments of error does not show that any effort was made to prove that the actual contract between Wright and Mrs. Hildebrand was other than as embodied in the writing. The evidence objected to related not to the contract between Wright and Mrs. Hildebrand, but to the contract between the brokers and Mrs. Hildebrand, upon which this suit is based. The writing did not embody this contract. The final clause, that each party should pay one-half of the commission, amounting to $ 500, was simply an agreement between vendor and purchaser to divide this commission between them. It was not a contract with the brokers for the payment of a commission. Whatever the contract may have been between Wright and Mrs. Hildebrand, the right of the brokers to their commission depended not upon this contract, except as it might evidence the performance of the brokers' contract, but it depended upon the agreement between the vendor and the brokers. This...