Donly v. Porter

• Decision Date: 09 February 1903
• Citation: 93 N.W. 574,119 Iowa 542
• Parties: PORTER DONLEY, Appellee, v. A. L. PORTER, Appellant
• Court: Iowa Supreme Court

93 N.W. 574

119 Iowa 542

PORTER DONLEY, Appellee, v. A. L. PORTER, Appellant

Supreme Court of Iowa, Des Moines

February 9, 1903

Appeal from Wright District Court.--HON. J. R. WHITAKER, Judge.

ACTION at law to recover compensation for services performed as a real estate broker. A jury was waived, and the case tried to the court, resulting in a judgment for plaintiff. Defendant appeals.

Affirmed.

Lyman Moats and Birdsall & Birdsall for appellant.

J. W McGrath for appellee.

OPINION

DEEMER, J.

As the case was tried to the court without a jury, its findings as to the facts will not be disturbed in the absence of a showing of passion or prejudice. That defendant appointed plaintiff as his agent to find a purchaser for his property must, in view of the rule just announced, be accepted as a verity, for there was evidence to support such a finding although it may not have preponderated toward that conclusion. To be entitled to his commission, it was incumbent on plaintiff to show that he did find a purchaser who was able, ready, and willing to take the property for the price and on the terms named by the defendant. These terms were $ 1,800 in cash. That plaintiff found a purchaser who was able, ready and willing to carry out his contract is conceded, and the only questions for determination are: First, did plaintiff make such a contract with this purchaser as he was authorized to make? and, second, if he did not do so, did defendant waive strict compliance therewith? The purchaser offered to give $ 1800, for the property,--paid $ 50 down, and was to pay the balance when the deed was delivered. Plaintiff wrote defendant as follows regarding the sale:

"The terms of the sale, as I made them, were: I made contract sale for $ 1,800.00 cash,--$ 50 paid down, and the balance of cash to be paid when the deed and abstract, showing good title, is given. I expect to receive the regular commission for making such sale,--5 per cent. on the first $ 1,000,00, and two and one-half per cent on amount over the first $ 1,000.00; $ 70.00 in all. Send the deed and abstract to the Citizens' State Bank, and the money will be paid to the bank; also send the lease. I wish you would write me at once, and let me know when possession can be given under the lease, and when the papers will be forwarded to the bank."

To this defendant responded saying:

"Your letter at hand, and contents noted. I presume that you understand the terms and conditions which I am required to make. I have to have the cash, as it is a trustee matter, and their price is $ 1,800.00 net. I could not go your way home, as matters via. Ill. Central required my attention. Yours truly, A. L. Porter.

"P.S. I could not give immediate possession. A. L. P."

In answer to this the plaintiff wrote: "Your letter of the 7th at hand, and contents noted. In reply, will say that you, perhaps, have received my letters by this time, informing you of the terms of sale, etc. In regard to the commission due now, I do not see how you interpret that I was to sell the place for $ 1,800.00 net. Your advice to me was to sell for $ 1,800.00, and, as I have done so, I will expect a commission, of course. Suppose I had sold for $ 2,000.00; could I have kept the $ 200.00 over what I was instructed to sell for? Not much. However, this is a matter for you and I to settle between ourselves, and does not interest the buyer. The buyer wants the property, and I have made contract with him to deliver the same, and I trust you will forward the papers as explained in another letter."

Defendant then wrote:

"At present the price of the house and premises is $ 1,800.00 net. I cannot give possession before spring."

Responding to that, plaintiff wrote as follows:

"I herewith inclose to you deed for the Moats property, for your signature. Send the deed, lease, and abstract to the bank here, with such instructions as you deem necessary. The question of commission due me on this sale will be and can be settled by us later. Please hurry the papers...