Beck v. Howard

• Decision Date: 15 July 1920
• Docket Number: 4679
• Citation: 43 S.D. 179,178 N.W. 579
• Parties: ERNEST BECK and George Mokrejs, Plaintiffs and appellants, v. W. S. HOWARD, Defendant and respondents.
• Court: South Dakota Supreme Court

43 S.D. 179

178 N.W. 579

ERNEST BECK and George Mokrejs, Plaintiffs and appellants,

v.

W. S. HOWARD, Defendant and respondents. South Dakota Supreme Court Appeal from Circuit Court, Charles Mix County, SD Hon. Robert B. Tripp, Judge #4679--Affirmed G. M. Caster and A. B. Beck Attorneys for Appellants. J. E. Tipton Attorney for Respondent. Opinion filed July 15, 1920

SMITH, J.

Plaintiffs were real estate dealers doing business at Geddes, Charles Mix county. On August 19, 1919, they entered into a written agreement with defendant, Howard, which, so far as material to this appeal, is as follows:

"I hereby authorize Ernest Beck and George Mokrejs to sell or find a buyer for the following farm in the state of South Dakota, county of Charles Mix, No. acres, 250. ... Who holds title? W. S. Howard. Price, $150 per acre net to owner (unless I shall agree to less.) ... It is further agreed by and between the undersigned that Ernest Beck and George Mokrejs shall have the exclusive sale of said land until October 1, 1919, on terms stated in this agreement."

On August 20th, the next day after the execution of this instrument, the defendant, Howard, himself, sold the farm to his son-in-law, Rayman, and on the same day notified plaintiffs of said sale. At the time plaintiffs were notified of this sale they had talked with one Louis Mokrejs, who expressed a willingness to buy, but had not closed a deal for the land, and plaintiffs had not presented to defendant a purchaser. On August 21st, by written contract strictly following the terms under which the land was listed, plaintiffs sold the land to Louis Mokrejs, who was father of one of the plaintiffs, at the price of $160 per acre, and tendered said contract with the purchase money to defendant, who refused to sell the land or to accept the purchase money.

Plaintiffs brought this action, alleging full performance, on their part, of the terms and conditions of listing, claiming $10 per acre as commission and demanding judgment for $2,500. A jury was impaneled to try the issues. At the close of all the evidence, by agreement of parties in open court the case, so far as a general verdict was concerned, was withdrawn from the jury. The court, of its own motion, thereupon submitted to the jury three interrogatories, viz.:

"(1) Was the sale of the defendant, Mr. Howard to his son-in-law, Mr. Rayman, on the loth of August, 1919, a good-faith sale in fact of this property to the son-in-law? Answer: Yes.

"(2) If your answer to the above question is, Yes, did Mr. Howard, the defendant, August 20, 1919, notify the plaintiff Mr. Mokrejs of the fact that he had sold the land to his son-in-law? Answer: Yes.

"(3) Was the contract of sale of August 21, 1919, of the plaintiffs to Mr. Mokrejs, the father of one of the plaintiffs in the case, a good-faith contract for the sale of this land at the rate of $160 per acre? Answer: No."

The court thereafter made and entered findings adopting the above special findings, and entered conclusions of law and judgment for defendant. From this judgment and an order overruling motion for a new trial, plaintiffs appeal.

Appellants do not challenge the sufficiency of the evidence to sustain the first two findings, their main contention being that such findings are immaterial, for the reason, as stated in appellants' brief, that:

"The appellants had the exclusive right to sell said real estate until October 1, 1919, and if they found a purchaser within that time, able, ready, and willing to purchase said real estate they were entitled to their commission. ... "

This statement implies a denial of the right of the principal to revoke the broker's authority whenever the exclusive right to sell within a specified time is given the broker by the agreement of listing. In 4 RCL 253, § 8, the rule is thus stated:

"As previously indicated, a broker's employment may be terminated by the principal revoking the authority granted at any time and under any circumstances the latter may see fit to put a stop to the agency. Although the employer has not an absolute right to revoke, in the sense that a revocation could never be wrongful or render him answerable in damages, still his power to revoke and thus terminate the broker's agency is absolute, notwithstanding that by the terms of their agreement the employment was to continue for a definite period of time, and the authority conferred was declared to be irrevocable. In order for a revocation of authority to be effective, notice thereof must be given the broker."

A broker's agency is not reduced...