Dickinson v. Hahn

• Decision Date: 06 July 1905
• Citation: 19 S.D. 525,104 N.W. 247
• Parties: DICKINSON et al. v. HAHN.
• Court: South Dakota Supreme Court

19 S.D. 525

104 N.W. 247

DICKINSON et al.

v.HAHN.

Supreme Court of South Dakota.

July 6, 1905.

Appeal from Circuit Court, Hanson County.

Action by Isiah Dickinson and another against A. G. Hahn. From a judgment for plaintiffs, defendant appeals. Reversed.

Haney, J., dissenting.Zollman & Kelso (Philo Hall, of counsel), for appellant. E. E. Wagner, for respondents.

FULLER, J.

On an alleged claim of $667 as their interest in certain commissions arising from the sale of three separate and distinct tracts of Hanson county land, plaintiffs recovered judgment for $343.75, together with costs, and the defendant has appealed. The evidence offered to support the complaint tends to show that some time during the month of May, 1902, or early in June of that year, respondents and appellant entered into a contractual relation, the main characteristics of which may be stated briefly as follows: Appellant, who was a resident of the village of Fulton, and engaged in the real estate business, apparently owned certain lands, and had other tracts listed, which he was authorized to sell on commission. He also owned a printing office, in which the respondent Dan W. Dickinson was employed, while his father, Isiah Dickinson, was engaged in the business of farming near the town of Fulton. Negotiations began at the Dickinson farm, where appellant proposed to give respondents $1 per acre for assisting in the sale of any lands then upon his list, and one-half of all that could be netted in the way of commissions on sales of such lands as they might subsequently list jointly, regardless as to which of the parties procuredthe purchasers and transacted the business. If the testimony of Isiah Dickinson is true, the foregoing proposition was squarely accepted by respondents, and pursuant to such agreement the parties proceeded to procure a list of lands in the sale of which they were to share the commissions equally after deducting such expenses as might necessarily be incurred in the transaction of the business. With reference to appellant, and what was immediately said and done, the witness testified in part as follows: “We started that day with the expectation of getting some land on our list. He said he thought that I, being a farmer, could get out and build up a better list than he could. It was after we had that conversation that we started out and drove to Farmer-the same day. The first man we did any business with was Mr. Smith. We took his land on our list that day; and we took Mr. Fred White's land; also Mr. George Smith's. I agreed to engage in business with him on the basis I have stated. Mr. Hahn wanted to know if it was agreeable with me for Dan to do the office work, to take care of the printing office and land office, to take care of any business that would come there. We were to have one-half of the profits on the land we listed together, and one dollar an acre on lands he had already listed that we helped him sell. He told me at that time what he wanted me to do. He said when he had customers from the East, by bringing them to me on the farm, my word would go further than his, he being known to be in the real estate business. *** We listed land after that together in Hanson county. I listed quite a good deal of land-every piece of land I could get-after that. I went to see the owners about the prices and terms, and got his net price-got the right to sell the farm. I put the lists in the office there after that. *** The arrangement with Mr. Hahn was that lands we listed together and either of us sold we were to divide the commission, and lands that he had already listed we were to receive one dollar an acre. I do not think we were to take lands separately. Any land that was listed after that should be sold by the company-any new land that we should list, either of us.” The witness further testified that of the land thus listed by the parties to this action two separate and distinct tracts, aggregating 320 acres, were sold during the season, and that he assisted in bringing about a sale of 320 acres, situated in a contiguous body, which had been previously listed by appellant. What he did with reference to the transaction is stated thus: “This land was sold to Mr. Stoner. I saw Mr. Stoner at the time this land was sold. Mr. Hahn brought him out to my place. He introduced him to me. I don't think Mr. Hahn said anything much, only Mr. Stoner was looking for land, and he told me what land he was showing him-what he wanted to sell him. I had some talk with Mr. Stoner. Q. Tell the jury what talk you had with Mr. Stoner. A. Mr. Stoner wanted to know my opinion of this country; wanted to know how long I had been...