Beaver v. Porter

• Decision Date: 17 November 1905
• Citation: 129 Iowa 41,105 N.W. 346
• Parties: BEAVER v. PORTER.
• Court: Iowa Supreme Court

129 Iowa 41

105 N.W. 346

BEAVER

v.PORTER.

Supreme Court of Iowa.

Nov. 17, 1905.

Appeal from District Court, Dallas County; Edmund Nichols, Judge.

Action to recover a sum named, alleged to be due as commissions earned in connection with a sale of real estate. The trial was to a jury, and there was verdict and judgment in favor of plaintiff. The defendant appeals. Reversed.Chas. L. Powell, for appellant.

White & Clarke, for appellee.

BISHOP, J.

The petition is in two counts. In the first plaintiff alleges that in September, 1902, the defendant, a resident of Minneapolis, Minn., and one C. A. Diehl, a resident of Des Moines, employed J. E. Alpaugh and W. H. Dinnell, real estate agents residing in Adel, Iowa, to act as their agents to find purchasers for tracts of Canada land of which they were owners; that the compensation agreed upon for their services was 35 cents per acre on the acreage for which they found purchasers; that said agents found purchasers in one Gudgel, to whom there was sold 6,400 acres of said lands, and in one Hoy, to whom there was sold 2,815 acres. And it is said that of the agents' commission agreed upon there remains unpaid the sum of $2,496, and that the amount thus due was, on December 3, 1902, assigned to plaintiff. In the second count the allegations of the first count are repeated, save that instead of relying upon a contract amount the reasonable value of the services of Alpaugh and Dinnell is alleged to be the sum of 50 cents per acre. And the judgment demanded is the sum of $1,999. The answer presents a general denial to each count, and in addition it is pleaded that a full and complete settlement of all the matters now relied on for judgment was had before this action was commenced.

In the main, the facts are not involved in any serious controversy. It was made to appear on the trial that Dr. C. E. Diehl, Clarence A. Diehl, the defendant Porter, and some 10 other persons were the beneficial owners of extensive tracts of land in the Northwest Territory, Canada, the title to all which was in Dr. Diehl as trustee. The extent of the interest held by any one of the persons does not appear. One of such tracts consisted of about 15,000 acres, and is spoken of in the record as the “hill lands”; a further tract, some distance removed from the hill lands, is spoken of as the “bottom lands.” Late in August, 1902, J. E. Alpaugh happened in Des Moines, and upon meeting Clarence Diehl, the latter proposed that he (Alpaugh) undertake to find a purchaser for the tract of hill land. The land was described to him generally, and a price was fixed at $4.50 per acre, with a commission fixed at 35 cents per acre. The bottom lands were spoken of, but no price was fixed. Alpaugh demurred on the ground that he had no funds to defray expenses, whereupon Diehl agreed to furnish funds, and gave Alpaugh $25, and, as the latter puts it: “I went to work.” On August 27, 1902, Clarence Diehl wrote Alpaugh from Des Moines inclosing a plat of the hill land, and in the letter it is stated that such is the “15,000 acre tract which I quoted you in a body at $4.50 per acre”; and further, “I think it could be resold this fall yet at an advance above the price I have been authorized to quote you.” Alpaugh interested Beaver, the instant plaintiff, and one Dinnell in the deal, and it appears agreed to give them each one-fifth of the commissions. Clarence Diehl was advised that the assistance of such parties had been secured, and on August 30, 1902, he wrote Alpaugh that he would try and have Porter come down “and line up the people as soon as you are ready for him.” In this letter Diehl declines to be responsible for the expenses of prospective purchasers who may be secured to go and see the land, and closes by saying: “Another contingency you must bear in mind is that it may become necessary to close with parties to cut the price to $4.25 per acre. This would still leave you a $1,500 commission.” September 10, 1902, Diehl again wrote to Alpaugh stating that, after a conference with his brother, the doctor: “We decided to quote you the following on the other portions of our Canada lands: [Here follows a designation by numbers of different parcels of the bottom lands, and the prices quoted range from $5 net to $7 net per acre.]” Nothing was said in the letter on the subject of commissions. About this time, Porter, who was then a real estate broker residing in Minneapolis, Minn., came upon the ground, and interested himself with Alpaugh and the others in getting up a party of prospective purchasers to go to Canada and look at the land. Two men only, Gudgel and Hoy, each of whom was introduced by Alpaugh, were induced to go, and they were accompanied by Alpaugh, Dinnell, and Porter. Alpaugh testifies that before the start was made, at a meeting of the parties interested, Hoy remarked that they might not want to take the entire tract on the hill, in response to which Porter said that, if they did not take but 5,000 of the 15,000 acres, the same price per acre would govern. Alpaugh says he then asked Porter “if our commission on the 5,000 acre sale would be the same as on 15,000 acres, and he said let it go the same.” In his testimony, Porter denies the statement so attributed to him, and declares that before the trip he knew nothing of the terms on which Alpaugh and his associates were working. Before going, the talk with Gudgel and Hoy was principally about the hill tract of land, and it does not appear that either Alpaugh or his associates made particular presentation of the subject of the bottom lands, and certainly no prices on such lands were quoted. After inspection of the lands, Gudgel and Hoy each proposed to buy portions of the hill tract and of the bottom lands, but upon condition that the price should be uniform at $4.50 per acre. Porter declined to contract on such basis without direct authority from Dr. Diehl, and wired him for advice.

It is conceded that, while waiting for a reply, Porter told Alpaugh that, if a contract was made on the basis proposed by Gudgel and Hoy, he (Alpaugh) would have to submit to a cut on his commissions, and that the cut would be to about $1,000. Porter testifies that Alpaugh consented to this and suggested that he (Porter) go ahead and close the deal. Alpaugh, in his testimony, insists that he refused to submit to any cut. Upon advice from Dr. Diehl, Porter did contract to sell to Gudgel and Hoy the number of acres as in the petition stated, being in part hill lands and part bottom lands, at the flat price of $4.50 per acre. After his return, Alpaugh...