Blair v. Austin

• Citation: 98 N.W. 1040,71 Neb. 401
• Decision Date: 17 March 1904
• Docket Number: 13,427
• Parties: HOLMES BLAIR v. JAMES A. AUSTIN ET AL
• Court: Supreme Court of Nebraska

98 N.W. 1040

71 Neb. 401

HOLMES BLAIR v. JAMES A. AUSTIN ET AL

No. 13,427

Supreme Court of Nebraska

March 17, 1904

ERROR to the district court for Lancaster county: EDWARD P. HOLMES JUDGE. Reversed.

REVERSED.

Flansburg & Williams, for plaintiff in error.

W. M Morning and John J. Ledwith, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

The main question in this case seems to be, whether the Nebraska statute, requiring all contracts for the selling of real estate between the owner and real estate brokers to be in writing, signed by both parties and fixing the amount of compensation, prevents any recovery specifically for a real estate broker's services in selling land, except such as is provided for by a contract answering these requirements?

The plaintiffs, defendants in error, brought suit in the district court to recover from Blair $ 325, alleging that they were real estate brokers, buying and selling real estate, for which services they charged their employers a commission; that in June, 1902, defendant owned all but 80 acres of a certain section of land in Lancaster county; that he then employed the plaintiffs to find a purchaser for the land and agreed to pay the usual commission, namely, 5 per cent. on the first $ 1,000 and 2 1/2 per cent. on the rest of the purchase price; that plaintiffs did find a purchaser, with whom defendant entered into negotiations which resulted in a sale in February following; that just prior to the sale, the defendant, with full knowledge of their services and efforts, and that they had practically concluded the transaction, entered into independent negotiations with the purchaser, and conveyed to the latter the land for $ 12,000, and refused to pay plaintiffs' commission; that the reasonable value of plaintiffs' services was "the agreed and customary commission thereon," namely, 5 per cent. on the first $ 1,000 of the said purchase price and 2 1/2 per cent. on the remainder, or $ 325, on which nothing was paid.

Defendant answered, admitting the ownership of the land; admitting the sale of it for $ 12,000; he says that in June, 1902, plaintiffs approached him and asked him to put a price on the premises; that he fixed the price at $ 22.50 an acre, and agreed to pay a commission of $ 50 on the first $ 1,000 of the consideration and $ 25 on each subsequent $ 1,000; that said agreement was merely verbal and never reduced to writing; that plaintiffs submitted various offers from the final purchaser, but all were for a much less sum than $ 22.50 an acre, and were refused; that on October 8, plaintiffs, acting on behalf of the purchaser, offered $ 11,500 net for the premises, and advised the defendant that that was the best offer they could obtain from said purchaser; that they never effected a sale or made any other offer; that in February, 1903, one H. C. Young, a real estate broker, approached defendant with an offer of $ 12,000 from some purchaser for the land, though defendant did not know at that time who the purchaser was; that this offer was finally accepted and the sale consummated by Young; that plaintiffs had nothing to do with it and could not have effected the sale with the same purchaser, and that defendant paid to Young a commission of $ 300 for effecting the sale. The allegations of the answer were denied, and trial was had to the court without the intervention of a jury.

The court found: (1) Plaintiffs were real estate brokers, buying and selling real estate on commission; (2) That the defendant owned the land and agreed with plaintiffs in June, 1902, as stated in the answer; (3) that plaintiffs called the attention of James and Phil O'Brien to the land, and induced them to enter into negotiations for its purchase, and submit propositions to the defendant, the best one of which was for the sum of $ 11,500. This was not accepted but afterwards, by plaintiffs' efforts, the O'Briens were induced to offer $ 12,000; (4) That the O'Briens submitted this proposition through one McLaughlin, to whose attention plaintiffs had brought the land and its price; that defendant accepted this proposition, knowing that the purchasers were the same parties who had negotiated for the land through the plaintiffs; (5) That the O'Briens preferred to obtain the land through McLaughlin, and whether or not the sale could have been concluded without his assistance, the trial court was not able to determine; (6) That McLaughlin and Young received $ 300 commission for the sale.

The trial court found as conclusions of law: (1) That plaintiffs were the procuring cause of the sale, and entitled to recover upon a quantum meruit the reasonable value of their services, of which defendant had availed himself with full knowledge; (2) That the agreement alleged in the petition, not being in writing, was void, but notwithstanding its invalidity, plaintiffs were entitled to recover the reasonable value of their services, if sufficiently alleged in their petition, and, in the event they were not sufficiently alleged, they should have leave to amend in accordance with the facts. As a third conclusion the court found that it was impossible to determine whether plaintiffs could have concluded the sale without McLaughlin's assistance, and that their...