Dent v. Powell

• Decision Date: 05 February 1895
• Citation: 61 N.W. 1043,93 Iowa 711
• Parties: DENT v. POWELL ET AL.
• Court: Iowa Supreme Court

93 Iowa 711

61 N.W. 1043

DENT

v.POWELL ET AL.

Supreme Court of Iowa.

Feb. 5, 1895.

Appeal from district court, Woodbury county; A. Van Wagenen, Judge.

Action at law to recover money alleged to have been paid to the defendants for the benefit and use of the plaintiff. The defendants, by counterclaim, seek to recover of the plaintiff compensation for effecting a sale of real estate owned by the plaintiff. There was a trial by jury, and a verdict and judgment for the defendants. The plaintiff appeals. Reversed.Spalding, Taylor & Burgess and Argo, McDuffie & Argo, for appellant.

Taylor, Shull & Farnsworth and Marks & Mould, for appellees.

ROBINSON, J.

In February and March, 1887, the plaintiff owned an interest in a quarter section of land situated near Sioux City. William E. Powell and W. W. Soule, the defendants, were engaged in that city in business as real-estate agents. The land appears to have been a part of the Agricultural College grant, and the plaintiff held the leasehold interest, with the privilege of becoming the owner in fee upon making payment of the amount required by his lease. In the latter part of February he authorized the defendants to make a sale of his land, at the same time explaining to them the nature of his interest. On or about the 2d day of the next month the defendants entered into an agreement with T. P. Wilde and E. J. Peterson, which is claimed to have been in effect a sale of the land, and received under the arrangement the sum of $500. The sale was not perfected, the money paid was retained by the defendants, and this action was brought to recover it. The defendants admit receiving and retaining the money, but allege that they entered into an oral agreement with the plaintiff to the effect that “if they found a purchaser for said tract of land at $10,000, and upon terms of payment which were given by plaintiff to defendants, they were to receive as compensation therefor the sum of $1,133.33 for their services in making said sale.” The defendants further allege that they found a purchaser for the land, and made a sale of it upon the terms and conditions authorized by the plaintiff, that they received from the purchaser the sum of $500, and that there is still due them the sum of $633.33. Judgment for that amount is demanded against the plaintiff. The jury found that there was due the defendants “$745, less $500 now in their hands,” and judgment was rendered according to the verdict. This cause was before us on a former appeal. See 80 Iowa, 456, 45 N. W. 772.

1. The defendant Soule was asked as a witness to state what the regular commission would have been had the sale been made at $50 per acre. An objection to the question was overruled, and the witness was permitted to state that it would have been 5 per cent. of the first $1,000 of the purchase price, and 2 1/2 per cent. of the remainder. The defendants did not seek to recover a reasonable compensation for making the sale, but a specific sum alleged to have been agreed upon by the parties. The alleged sale was made for $62.50 an acre, or for $10,000. The defendants claim that by the terms of the final arrangement under which the alleged sale was made they were to receive $1,333.33 as commission, and the plaintiff admits that he was to receive but $8,666. There was no issue in the case in regard to what was a reasonable compensation for making the sale. If the defendants were entitled to recover, they should have been given the amount they claimed. Testimony as to what would have been a reasonable or the regular compensation for the sale of the land at $50 per acre was wholly irrelevant. But the plaintiff could not have been prejudiced by the testimony on that point, for the reason that the jury necessarily found that the defendants had effected a sale according to the authority given them; and, if that finding was sustained by the evidence, they should have found for the defendants in a much larger sum than they did. The defendants might claim that the recovery was too small, but the plaintiff will not be heard to make that objection.

2. The district court instructed the jury that the defendants were entitled to recover if they had shown that they had found purchasers for the land who were able, ready, and willing to take it on the terms the defendants had been authorized to make. The appellant contends that the verdict was contrary to the instructions, and not supported by the evidence. By the terms of the sale, one-third of the purchase price was to be paid in cash, and the remainder in one, two, and three years. The purchasers were copartners doing business under the...