Brown Paper Mill Co. v. Irvin

• Citation: 146 F.2d 232
• Decision Date: 11 December 1944
• Docket Number: No. 12820.,12820.
• Parties: BROWN PAPER MILL CO., Inc., v. IRVIN.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

146 F.2d 232 (1944)

BROWN PAPER MILL CO., Inc., v. IRVIN.

No. 12820.

Circuit Court of Appeals, Eighth Circuit.

December 11, 1944.

L. J. Benckenstein, of Beaumont, Tex., and Gordon E. Young, of Pine Bluff, Ark. (Clyde R. Brown, of Monroe, La., on the brief), for appellant.

John Baxter, of Dermott, Ark. (Will J. Irvin, of Dermott, Ark., and Lee Cazort Jr., of Little Rock, Ark., on the brief), for appellee.

Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

The appellee, Irvin, brought this action against the appellant, the Brown Paper Mill Company, Inc., alleging that under an oral agreement made by the parties in 1937 he was entitled to a broker's commission of 25 cents an acre on the purchase by the appellant from J. L. Williams & Sons, Inc., of 53,363.27 acres of Arkansas timber land. This is the second appeal in this action from a judgment in favor of the appellee for the full amount of the commission claimed by him, with interest from November 1, 1940, the date of the purchase contract. On the first appeal the case was remanded to the district court with directions to vacate its judgment, to make definite and certain findings on the issues of fact in dispute between the parties, to declare the law in accordance with the findings, and to enter the appropriate judgment. Brown Paper Mill Company, Inc., v. Irvin, 8 Cir., 134 F. 2d 337. The district court has restated its findings of fact and conclusions of law and has entered the same judgment in favor of appellee.

On this appeal, as on the first, the appellant challenges the sufficiency of the evidence to support the district court's findings of fact and judgment. It contends that there is no substantial evidence to show that the appellee was authorized by the alleged contract of 1937 to act as agent for appellant in the purchase of the Williams land; and denies that there is any evidence in the record to support either the finding that appellant at any time agreed to pay appellee a commission on the purchase of the Williams land, or the conclusion that appellee was the procuring cause of the purchase. Appellant also contends that, if the appellee ever had a contract with appellant, such as he claims, its rescission prior to the purchase of the Williams land is conclusively established, and that this action was prematurely brought. The district court resolved all of these issues in favor of appellee, being influenced in its decision on the facts by the conduct of the parties from the time of the appellee's alleged employment as broker until the purchase of the Williams land by appellant, and by testimony of the admissions of appellee's agency by officers of appellant.

The burden was upon the appellee to prove by substantial evidence not only the fact of his employment as broker, but also the terms of that employment, performance of the contract on his part, the amount of his commission earned and payable under the contract at the time of the trial of the action, and appellant's breach of the contract. Whether the district court's finding that appellee was employed by appellant as its agent in the purchase of the Williams land and its conclusion that appellee was the procuring cause of the purchase are correct, we find it unnecessary to decide. For, conceding that the court was right on each of these issues, there is no evidence in the record to show that any part of the commission sued for was due and payable to appellee either at the time of the institution of this action or at the time of its trial. On the contrary, the proof is that appellee's compensation under the contract, conceding that a contract as claimed is established by the evidence, was not payable when this action was begun; and there is a total absence of evidence to show what part, if any, of his commission was payable at the time of the trial.

The contract of November 14, 1940, between the Williams Company and appellant for the purchase of the Williams land is summarized in the record. It recites that the Williams Company, at the time of the execution of the contract, was the owner of approximately 30,000 acres of Arkansas land, and that it had contracted to purchase another tract of approximately 25,000 acres from a Minnesota corporation. The Williams Company agreed to sell all of the lands mentioned to the appellant, delivery and conveyance of the lands from seller to buyer to be made over a twelve-year period from January 15, 1941, with a minimum of seven and one-half per centum of the total acreage to be conveyed annually. The Williams Company was also obligated to furnish complete abstracts of title for examination by the appellant, with the further agreement that all lands, titles to which were disapproved by appellant, should be discharged from the contract. Appellee testified that prior to his negotiations with the Williams Company he had learned of the purchase by appellant of lands in Louisiana under a contract of like terms and conditions. He said that before beginning negotiations with the Williams Company he was advised by appellant that it would be interested in the purchase of the Williams land under a similar contract. This testimony of appellee shows that the purchase contract in this case was the one which he alleges he was employed to procure.

The contract under which appellee claims he was employed as an agent of appellant in the purchase of the Williams land was oral. Appellee testified that, by the terms of the contract, he was not entitled to the payment of his commission on any purchase of land procured by him until the appellant had accepted title and bought the land. He said that, if the title was defective and for that reason a sale did not go through, he was to get no commission, and that his commission was not due and payable to him until the sale was actually completed and the title actually passed on by the company; that he was to be paid 25 cents an acre on any lands that he could buy for appellant, subject to their inspection and approval by appellant; that if the titles were defective or if the sale did not go through he was not entitled to a commission. He said that sometimes it takes a long time to work out sales of large tracts of land, and that he was not entitled to the payment of his commission until the title to the lands located by him was actually vested in the appellant. This version of the terms of his contract was given by the appellee in his deposition taken more than two months before the trial and again at the trial. Later, in his redirect examination at the trial appellee said that he "considered" that his commission was "due" when the purchase contract "was made," but at the same time he admitted that the amount of his commission and the time it became payable were dependent upon acceptance of title by the appellant. Aside from the fact that the burden here was on the appellee, this attempt at a favorable interpretation of an unambiguous contract previously stated by appellee affords no basis for the court's finding that appellee's commission was payable when the purchase contract was signed nor for its conclusion that this action was not prematurely brought. Moreover, appellant and appellee admitted that appellee was employed by appellant as its agent in the purchase of certain small tracts of land under the very contract sued on in this case. While the purchase of the Williams tract was being negotiated, the appellee procured the purchase by appellant of several small tracts of land under the contract sued on. Appellee's letters to appellant concerning these purchases show that his commission was not claimed nor paid until appellant had approved the title to the land and accepted conveyance of it. It is apparent from appellee's letters that in the instances mentioned his commission was paid either at the time of the delivery of the seller's deed to appellant or after that delivery. During the final negotiations between appellant and the Williams Company for the purchase of the Williams land, appellee wrote to appellant suggesting a meeting "to work out plans and terms for payment of the commission on the sale of this tract of lands." If, under the alleged contract between appellee and appellant, the amount of appellee's commission was certain and payable on the conclusion of a purchase of which he was the procuring cause, there was no necessity for further negotiations to determine either a plan or terms for its payment. This letter shows appellee's understanding that the amount of his commission, as well as the time of its payment, was not determined at the execution of the purchase contract which he claims to have procured.

It is said that the customary business of a real estate broker is to find for his principal a buyer or seller, ready, able, and willing to buy or sell, on terms satisfactory to his principal, and that, in the absence of a special contract between the broker and his principal providing otherwise, when the principal enters upon an executory contract for the purchase or sale of land upon terms satisfactory to him, the broker is entitled...