Braniff v. Baier

• Decision Date: 09 June 1917
• Docket Number: 20,897
• Citation: 165 P. 816,101 Kan. 117
• Parties: T. J. BRANIFF et al., Appellees, v. HENRY F. BAIER and CHARLES A. BAIER, Appellants
• Court: Kansas Supreme Court

165 P. 816

101 Kan. 117

T. J. BRANIFF et al., Appellees, v. HENRY F. BAIER and CHARLES A. BAIER, Appellants

No. 20,897

Supreme Court of Kansas

June 9, 1917

Decided January, 1917.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AGENCY--Binding Contract of Agency to Sell Land Between Owner and Broker. While an agreement by an owner that a broker shall have the exclusive agency to find a purchaser for his land, for a fixed time, upon certain conditions is unilateral when made, the element of mutuality is supplied when the broker accepts its performance by spending time and effort in doing the things that it was contemplated would be done by him under the agreement, and thereafter it is a binding obligation upon both.

2. SAME--Purchaser Produced--Owner Refused to Sell--Broker Entitled to Commission. Where a purchaser is produced by the broker in substantial compliance with the terms of the agreement, and the owner makes no objection to the terms of the offer of purchase or the details of performance, but simply declares that he does not now desire to and will not sell his land, he is estopped, after suit is brought upon the agreement, to shift his position and defend upon objections to details that the broker might have supplied or corrected if they had been mentioned by the owner when the offer of purchase was made.

3. SAME--Mistake in Name of Purchaser--Petition Deemed Amended. As the evidence shows that the name of the purchaser was other than that stated in the petition the pleading will be deemed to be amended so as to conform to the proof.

Z. C Millikin, of Salina, for the appellants.

C. W. Burch, B. I. Litowich, and La Rue Royce, all of Salina, for the appellees.

OPINION

JOHNSTON, C. J.:

This was an action by T. J. Braniff, G. E. Holmberg and A. Lynn against Henry F. Baier and Charles A. Baier to recover an agent's commission for procuring a purchaser for defendants' real estate. Holmberg and Lynn are the assignees of C. W. Talmadge's interest in the commission claimed, who was associated with Braniff in the transaction. Plaintiffs were awarded judgment in the sum of $ 702, and the defendants appeal.

Defendants engaged the services of Braniff and Talmadge on July 1, 1913, and signed the following memorandum:

"We the undersigned H. F. Baier and C. A. Baier do hereby appoint and constitute C. W. Talmadge and T. J. Braniff, or either of them, as our only agents to sell our forty acres of farm land in Fellsmere, Florida; known as tracts No. 1232, 1233, 1260 and 1261 in township 31, range 37, in St. Lucy county, Florida; and we also hereby agree to accept from the above named agents or either of them, the actual cash we have already paid on the above mentioned contracts, plus $ 50.00, plus $ 8.00 for transferring the contracts, as full payment to us for our interest in the above named lands; the purchaser to assume all future payments. The above named contract to remain good until October 1, 1913. Dated July 1, 1913."

After this appointment was made the agents acted upon the authority by advertising the land, interviewing parties, and writing letters, and they spent considerable time and effort to find a purchaser. As a result of correspondence begun about August 1, 1913, George W. Auber, of Fellsmere, Fla., on August 25 agreed to buy the land, and he sent the following letter enclosing payment:

"Farmers National Bank, Salina, Kansas. Inclosed you will find a check for $ 950.00 in favor of Henry and Charles Baier for their interest in tracts south range 37, east of the Fellsmere Farms, Fla., of land No. 1232, 1233, 1260 and 1261, township 31, said check to be given to said Henry and Chas. Baier when contracts or certificates of purchase have been properly transferred and signed by them in favor of me, George W. Auber. You will also find inclosed a check for $ 750 in favor of C. W. Talmadge and T. J. Braniff when said contracts are properly transferred to me and mailed and registered to my address, being Fellsmere, Florida."

About ten days before the Auber letter was written the defendants told Braniff that they did not desire to sell the land, and on August 26 they wrote a letter stating that the land was withdrawn from sale and the authority of the agents revoked as of the date of the oral notice. When defendants were informed by the agents that a purchaser had been found in accordance with the terms of their contract defendants replied that the lands were no longer for sale and that the money sent would not be accepted. The jury found, in effect, that the agents had found a purchaser and had complied with the terms of the written contract, and that the only reasons given by defendants for not complying with the contract was that the land had been withdrawn from sale and that they did not care to sell it at that time.

Defendants contend that the contract of agency was unilateral and subject to revocation at any time before a purchaser was produced. The employment or agency, it will be observed, was exclusive and for a fixed time. It is true, as defendants contend, that when the promise of one party is the consideration for the promise of another they must be obligatory upon both parties at the same time or they will not bind. The appointment or promise of defendants was unilateral when made, but when it was accepted by the agents and they had spent time, effort, and money in carrying out its provisions, there was thereafter no lack of consideration. When the agents accepted the proposal and proceeded to perform the services which the appointment contemplated were to be performed by them it became a mutual and binding obligation. As soon as the promises of the parties ripened into a contract Braniff and Talmadge became the sole agents for the sale of the defendants' land, with the exclusive right to sell it, until October 1, 1913. The defendants could not thereafter, by withdrawing the land from sale or by an attempted revocation, set aside the contract nor escape responsibility for the violation of its conditions.

In a litigation over a contract to find a purchaser for land the question was raised that the contract was...