Childs v. Ptomey

• Citation: 43 P. 714,17 Mont. 502
• Parties: CHILDS v. PTOMEY et al.
• Decision Date: 17 February 1896
• Court: Montana Supreme Court

43 P. 714

17 Mont. 502

CHILDS v. PTOMEY et al.

Supreme Court of Montana

February 17, 1896

Appeal from district court, Madison county; Frank Showers, Judge.

Action by Hiram L. Childs against Nelson Ptomey and another for commission due under contract. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. Reversed.

Plaintiff sues the defendants to recover the sum of $3,000, alleged to be due upon a contract for the payment of a commission by the defendants to plaintiff, for the procuring a purchaser and effecting the sale of the Lucas Mine, owned by the defendants, and situated in Madison county. The complaint alleges that in May, 1893, plaintiff and defendants entered into an agreement whereby the defendants engaged and procured the services of plaintiff to effect a sale of said mine, and to procure a purchaser for said property for the defendants and that it was then and there agreed that the consideration that should be asked, and the fixed price for the said mine and property should be, and was then and there agreed to be $18,000, and the plaintiff was to have and receive $3,000 for his services, influence, and effort to effect a sale of said mine and property, and for procuring a purchaser for said property. It is further alleged that plaintiff, relying upon the aforesaid contract and agreement, and in pursuance of said employment, did procure a purchaser for the defendants' property, and did bring about, induce, and effect a sale of the Lucas Mine to one Best of Tacoma, and that said Best, in September, 1893, bought said mine for $10,000 in cash, and that, "only for the unreasonableness of defendants requiring the consideration for the sale of said mine and property to be paid in spot cash, the same could and would have been sold at a sum greatly in advance of the sum mentioned in the deed of conveyance, to wit, $10,000." Plaintiff further alleges that he duly performed all and singular the terms and conditions of said contract and agreement upon his part that were required to be done or performed, but that he has never been paid his $3,000, and that the defendants refuse to pay the same, or any part thereof. The complaint contained another count, for the services rendered in making the sale in payment upon a quantum merit. Before the trial the defendants made a motion to compel the plaintiff to elect upon which count of his complaint he would proceed, whereupon he abandoned the last count, and elected to try the case on the original contract. A general demurrer was interposed by the defendants to the first count of the plaintiff's complaint. This was overruled. Defendants answered, denying all the allegations of the complaint, except the fact of the purchase of the property by Best for the sum of $10,000. The trial was had before a jury. The plaintiff recovered a general verdict. The defendants appeal from the order overruling their motion for a new trial, and from the judgment in favor of the plaintiff.

Henry N. Blake, W. A. Clark, and Geo. F. Shelton, for appellants.

Smith & Word and J. E. Callaway, for respondent.

HUNT J. (after stating the facts).

The evidence of the plaintiff himself tends to show that, at an interview with Mr. Ptomey, one of the defendants, he asked Ptomey what his price was for the mine, and was told "$15,000 cash," whereupon the plaintiff said he would have to ask the parties he brought to look at the mine $18,000; that he told Mr. Ptomey that he would bring some parties to him within four or five days, and he could make his own negotiations; that the parties came within a few days, and were introduced to the Ptomeys by the plaintiff; that subsequently, in July, negotiations were had between the defendants and certain persons representing the purchasers of the mine; that in September one J. B. Best, who had been represented by the parties who had been introduced to the Ptomeys by the plaintiff, purchased the mine for $10,000. The plaintiff was then asked whether he had told the Ptomeys, when they said they asked $15,000 for the mine, that if he brought purchasers there, or persons through whom a sale was made, he would require $3,000 for his services. The defendant answered in this way: "Yes, sir; I don't know that I said so in the exact language, but that is what I meant. Yes, sir. The conversation regarding the price was $15,000. They had decided to ask $15,000 cash for the mine, and I said I should want $3,000 as my commission, that I expected parties, and that I would bring them here, and introduce them to them, and they could make their own negotiations,--negotiate direct with the people. They said, with reference to that proposition of mine, they would have to ask $18,000. They said it was satisfactory--it suited them exactly--to negotiate direct with the people, instead of through me, or words to that effect. Henry Ptomey said that. There was no dissent or objection to the price...