Clarke v. Blackfoot Water Works Ltd.

• Decision Date: 31 May 1924
• Citation: 228 P. 326,39 Idaho 304
• Parties: E. H. CLARKE, Doing Business Under the Firm Name and Style of CLARKE REALTY COMPANY, Appellant, v. BLACKFOOT WATER WORKS, LTD., a Corporation, Respondent
• Court: Idaho Supreme Court

228 P. 326

39 Idaho 304

E. H. CLARKE, Doing Business Under the Firm Name and Style of CLARKE REALTY COMPANY, Appellant, v. BLACKFOOT WATER WORKS, LTD., a Corporation, Respondent

Supreme Court of Idaho

May 31, 1924

BROKERS-COMPENSATION-CONTRACT FOR SALE OF REAL PROPERTY-CONSTRUCTION - "BEEN IN CORRESPONDENCE" - "OPENED NEGOTIATIONS"-ACTION FOR COMMISSION-EVIDENCE-ADMISSIBILITY-APPEAL AND ERROR - REVIEW-VERDICT - LACK OF EVIDENCE IN SUPPORT OF-EFFECT.

1. Where it is provided in a contract for the sale of property by a real estate broker that the owner will pay an agreed commission in the event of a sale of the property, within twelve months after the expiration of the contract, to "any individual, firm or corporation with whom or with which [the broker] shall have been in correspondence, or shall have opened negotiations, during the twelve (12) months....," it was not necessary that the property be sold as the result of the efforts of the broker, it being necessary only for the broker to show that the property was finally sold to one with whom or with which he had been in correspondence, or had opened negotiations, within the time provided.

2. Where it is provided in a contract for the sale of property by a real estate broker that the owner will pay an agreed commission in the event of a sale of the property, within twelve months after the expiration of the contract, to "any individual, firm or corporation with whom or with which [the broker] shall have been in correspondence, or shall have opened negotiations, during the twelve (12) months...," by the expression "with whom or with which [the broker] shall have been in correspondence, or shall have opened negotiations," the parties meant any individual, firm or corporation with whom or with which the broker should take up the matter of the sale by means of correspondence, or any individual, firm or corporation to whom or to which the broker should make an effort, by the methods ordinarily employed by real estate brokers, to sell the property.

3. The object and purpose of a contract may well be taken into consideration in arriving at a correct understanding of what the parties had in mind in using words the meaning of which is in controversy.

4. Where there is no substantial evidence to support the verdict the judgment will be reversed.

5. Statements of the officers of a corporation, in negotiations for the sale of the property of the corporation, that, in arriving at the price to be paid, the commission of the real estate broker should be taken into consideration, are admissible in an action by the broker against the corporation for a commission.

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. O. R. Baum, Judge.

Action by real estate broker for commission. Judgment for defendant. Reversed.

Judgment reversed. Costs to appellant. Petition for rehearing denied.

Budge &amp Merrill, for Appellant.

Where the evidence is overwhelmingly in favor of the plaintiff's cause of action and there is no substantial conflict in it, judgment for the defendant will be set aside. (Idaho Mercantile Co. v. Kalanquin, 8 Idaho 101, 66 P. 933; Grisinger v. Hubbard, 21 Idaho 469, Ann Cas. 1913E, 87, 122 P. 853; Spencer v. John, 33 Idaho 717, 197 P. 827; Quayle v. Ream, 15 Idaho 666 99 P. 707; Breshears v. Callender, 23 Idaho 348, 131 P. 15; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635.)

In a civil action the admissions by a party of any fact material to the issue are always competent evidence against him wherever, whenever or to whomsoever made. (Reed v. McCord, 160 N.Y. 330, 54 N.E. 737; 2 Chamberlayne's Modern Law of Evidence, notes, 1290, 1291.)

Declarations of officers of a corporation in the line of their duty are admissible in an action against the corporation. (Mantle v. Jack Waite Mining Co., 24 Idaho 613, 135 P. 854, 136 P. 1130; Martin v. Manchester Inv. Co., 181 Mo.App. 364, 168 S.W. 904; Vincent v. Soper Lumber Co., 113 Ill.App. 463; Pits v. D. M. Steel Merc. Co., 75 Mo.App. 221; 16 Cyc. 1019.)

John W. Jones and Guy Stevens, for Respondent.

It was manifestly the intention of the parties to the contract to provide some compensation for the services of the plaintiff in the event the property was sold by the owner thereof during the year following the first year of the contract to one with whom plaintiff had been in correspondence or with whom he had opened negotiations during the first twelve months of the contract. The contract should be construed to give effect to this evident intention of the parties. So construed, it cannot be urged that the writing of a circular letter to the mayor and the individual members of the council informing them of the sale contract and the price specified therein, which apparently received no attention and to which there was no reply, constituted the city of Blackfoot a corporation with which the plaintiff had been in correspondence.

The Universal Dictionary defines the word "correspondence" as follows: (1) Intercourse by means of letters sent and received. (2) The letters sent and received by correspondents.

Webster's New International Dictionary, 1912, defines the word "correspond" as follows: (3) to have intercourse, communion, or communication; esp., to hold intercourse or to communicate by sending and receiving letters.

The word "negotiation" is generally defined as treating or negotiating with another respecting the purchase and sale of anything, bargaining, treaty. Universal Dictionary.

"It is not necessary that the admission should be of the principal fact, or all of a series of facts in dispute; but it must relate to the subject matter of the issue in such a way as to be relevant, or at least fairly justify or permit an inference to be drawn concerning the matter in issue." (1 Elliott on Evidence, sec. 222, p. 317.)

"The admission, like all other evidence, must be material to the issue. " (1 Ency. of Evidence, p. 603.)

WM. E. LEE, J. McCarthy, C. J., and Terrell, District Judge, concur.

OPINION

WM. E. LEE, J.

--Prior to and on February 5, 1919, and for something over a year thereafter, the respondent, Blackfoot Water Works, Ltd., a corporation, was the owner of a plant and system which furnished water to the city of Blackfoot. On the above-mentioned date, respondent entered into a written contract with appellant, E. H. Clarke, of Pocatello, doing business under the name of Clarke Realty Company, by which respondent listed with appellant, and granted him the exclusive right to sell, the waterworks plant and system for a period of one year. The sale price was fixed at $ 125,000, and respondent promised to pay appellant a commission of five per centum of the sale price in the event of a sale. No sale of the property was effected within a period of one year from the date of the execution of the contract, but the property was sold to the city of Blackfoot on or about November 1, 1920, for the sum of $ 82,000, which was within a period of two years from the date of the contract. The contract contained the following provision:

"It is further agreed by the parties hereto that in the event that no sale is entered into within the twelve (12) months allowed by this option and agreement, but a sale is nevertheless made within the twelve (12) months thereafter and entered into between the Blackfoot Water Works, Ltd., and any individual, firm or corporation with whom or with which the said Clarke Realty Company shall have been in correspondence, or shall have opened negotiations, during the twelve (12) months that this option is fully effective, then in that case the Blackfoot Water Works, Ltd., by its officers, agrees to pay to the Clarke Realty Company a commission of two and one-half per cent (2 1/2%) on the sale price."

Upon the sale of the property to the city of Blackfoot, appellant demanded of respondent the payment to him of $ 2,050, being two and one-half per centum of the sum for which the property was sold, as a commission which he alleged to be due him under the contract.

In addition to other allegations, appellant alleged that, in compliance with the terms of the contract and by reason thereof, he spent a great amount of time and money in an endeavor to effect a sale of the property, and that, within one year from the date of the contract, he opened negotiations and had correspondence with the city of Blackfoot in an effort to sell the property to that municipality. In the answer, respondent admitted the execution of the contract and admitted the sale of the property to the city of Blackfoot for $ 82,000, but denied that appellant opened negotiations or had correspondence with the said city, and further denied that there was anything due or owing to appellant on account of the sale of the property to the city of Blackfoot. The action was tried to the court and a jury and resulted in a verdict and judgment for respondent.

Appellant makes three assignments of error, one of which raises the question of the insufficiency of the evidence to sustain the verdict, the other relating to alleged errors of the court in sustaining objections to certain testimony offered by appellant.

The testimony shows that after the execution of the contract appellant addressed a communication to the mayor and members of the council of the city of Blackfoot, advising them that the waterworks property was listed with him for sale, and that it could be purchased for $ 125,000. None of the officers of the city answered the communication, and no other letter was written to them concerning the matter. At that time the newly elected officers were about to assume office, and the outgoing officials did not desire to consider the question because of the early change of administration in the ...