Borst v. Lynch
| Decision Date | 09 March 1907 |
| Citation | 110 N.W. 1031,133 Iowa 567 |
| Parties | DAVID BORST v. H. T. LYNCH, Appellant |
| Court | Iowa Supreme Court |
Appeal fro Buchanan District Court.-- HON. FRANKLIN C. PLATT, Judge.
ACTION to recover from defendant as plaintiff's agent for the sale of land the amount received for said land in excess of the sum reported and accounted for by defendant, and also the amount of commission paid defendant for effecting such sale. Verdict and judgment for plaintiff. Defendant appeals.-- Affirmed.
Affirmed.
E. E Hasner and Charles E. Ransier, for appellant.
Cook & Cook and R. E. Leach, for appellee.
Plaintiff listed his farm with defendant, as real estate agent, for sale at $ 60 per acre, cash, agreeing to pay $ 1 per acre for commission. The evidence for plaintiff tended to show that a sale was reported by defendant to plaintiff as made to one Holmes for $ 60 per acre, and that payment was made to plaintiff accordingly, the agreed commission being paid by plaintiff to defendant; whereas, in fact, the defendant sold the land to Holmes for $ 65 per acre, and concealed from plaintiff the fact that more than $ 60 per acre had been thus received. The evidence for defendant tended to show that the actual sale was represented to have been made, and was, in fact, made to one Gooch for $ 60 per acre, and that, while there were negotiations for a sale to Holmes at $ 65 per acre, such sale was not in fact effected until afterward, and then not entirely for cash, but for one part cash paid by Holmes, another part cash raised by a first mortgage on the land given by Holmes, and a third part represented by Holmes' note secured by a second mortgage on the land. According to the evidence on behalf of defendant, Gooch was a land agent, who brought Holmes from Illinois to look at the land, and with whom defendant was to divide the commission and also the amount in excess of $ 60 per acre, which should be realized from the sale to Holmes, or, if Holmes should not finally take the land at $ 65 per acre, then Gooch should furnish the money for completing the payment for the land at $ 60 per acre on the basis of a cash sale.
The assignments of error predicated on the giving and refusal of instructions are based on the contention that, as Holmes was unable to pay the amount of cash required for the purchase of the land, defendant was at liberty to make an arrangement with Gooch by which plaintiff should be assured of the cash price for which he had authorized defendant to sell the land, and a sale in the interest of defendant and Gooch should be made to Holmes without plaintiff's knowledge for $ 65 per acre, a part of the purchase price being payable to defendant and Gooch on time, secured by a second mortgage,...
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