Bierkamp v. Beuthien

• Decision Date: 13 January 1916
• Docket Number: 30342
• Citation: Bierkamp v. Beuthien, 173 Iowa 436, 155 N.W. 819 (Iowa 1916)
• Parties: WILLIAM BIERKAMP, Appellee, v. M. BEUTHIEN et al., Appellants
• Court: Iowa Supreme Court

155 N.W. 819

173 Iowa 436

WILLIAM BIERKAMP, Appellee, v. M. BEUTHIEN et al., Appellants

No. 30342

Supreme Court of Iowa, Des Moines

January 13, 1916

Appeal from Cedar District Court.--MILO P. SMITH, Judge.

ACTION at law to recover commission alleged to have been earned by plaintiff in procuring a purchaser of the property of defendant. There was a verdict for plaintiff, and from the judgment entered thereon, the defendants appeal.--Reversed and Remanded.

Reversed and Remanded.

W. G W. Geiger, for appellants.

J. C France, for appellee.

WEAVER J. EVANS, C. J., DEEMER and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The defendant, Elise Beuthien, wife of her codefendant, M. Beuthien, owned certain property in the town of Durant, which she sold and conveyed to one Miller. The plaintiff sues both husband and wife to recover a commission upon such sale, alleging that he procured Miller to make the purchase, as he had been previously authorized to do by the defendant M. Beuthien. The defendants, separately answering, deny plaintiff's agency in the matter of said sale, and deny his right to a commission thereon.

I. Error is assigned upon the refusal of the trial court, at the close of the trial, to direct a verdict in favor of the defendant Elise Beuthien, because of the lack of evidence to justify a finding that she employed the services of the plaintiff or authorized any other person to do so.

We are of the opinion that the exception is well taken, and that verdict should have been directed in favor of said defendant. The record is wholly barren of evidence that plaintiff was ever employed by or for this defendant, or that she knew or understood that, in whatever he did with reference to the sale, plaintiff was acting or claiming to act as her representative. His conduct in her presence and his conversations with her or in her presence were not at all inconsistent with the theory that, in so far as he represented anybody in the transaction, it was the buyer, rather than the seller, and this is what she claims to have supposed. It is to be borne in mind that plaintiff has sued in this case upon an alleged express contract, and not upon a quantum meruit, and he must recover upon proof of the making of such express contract and the performance of the agreed service, or not at all. Hunt v. Tuttle, 125 Iowa 676, 101 N.W. 509. Applying that rule to the record in this case, there should have been no recovery against Mrs. Beuthien.

In this connection, we may also note the appellant's exception to the fourth paragraph of the court's charge to the jury. The court there stated one phase of the rule of law applicable to the case to be that, "if the defendant M. Beuthien was authorized generally to act for his wife in this matter, or for both of them, and he did so act", then she would be liable to plaintiff for his commission, the same as if all the transactions were had between herself and plaintiff directly. For reasons already stated, this instruction should not have been given. There is no evidence to the effect that the husband was authorized to act in the matter generally for his wife, or to bind his wife to an obligation to pay an agent's commission for the sale of her own property. She doubtless did understand that her husband was trying to bring about a sale of the property, and it was within her right to approve any sale he might arrange for, if she found it satisfactory, and to carry it out by executing and delivering the proper conveyance, but it needs more than this to bind her to liability for the fees or services of agents whom he may employ in such transaction.

II. The appellants further complain that the trial court erred to their prejudice in interrupting the course of the trial and itself conducting extensive examination of the...