Ducummon v. Johnson, 47842

Citation47 N.W.2d 231,242 Iowa 488
Decision Date04 April 1951
Docket NumberNo. 47842,47842
PartiesDUCUMMON v. JOHNSON.
CourtUnited States State Supreme Court of Iowa

Burt & Prichard, of Emmetsburg, for appellant.

Van Alstine & Van Alstine, of Pocahontas, and Kelly & Spies, of Emmetaburg, for appellee.

THOMPSON, Justice.

Plaintiff's petition alleges that in October, 1946, he was a licensed real estate broker, and at that time he was orally employed by defendant to sell 320 acres of land in Palo Alto county, Iowa, for $225.00 per acre, and that upon procuring a buyer ready, willing and able to purchase on terms specified by defendant plaintiff was to receive a commission of two per cent of the purchase price.

It is further alleged that plaintiff showed the land to one M. S. Grossnickle on August 22, 1947, and immediately thereafter Grossnickle purchased it from defendant at a price believed to be $72,600. Refusal to pay plaintiff a commission is further pleaded.

Defendant's answer denies that plaintiff was a licensed real estate broker, admits the oral listing agreements as claimed by plaintiff, but denies an exclusive agency in plaintiff. Defendant admits the sale to Grossnickle, but denies that the price was $72,600, denies that plaintiff was the procuring cause of the sale; alleges that he had no knowledge plaintiff had showed the land to Grossnickle, and admits that he paid no commission to plaintiff. There was a trial to a jury, and verdict and judgment for plaintiff in the sum of $1,440, as prayed.

Upon oral argument and submission of the cause in this court defendant, through his counsel, announced that he relied upon three grounds for reversal. With one omission, which will be noted later, they are, in substance, the same as those set out in the 'Statement of Errors,' or errors relied upon for reversal in defendant's written brief and argument. They will be considered in the order presented.

I. The first error claimed arises from plaintiff's failure to show that, at the time he sold to Grossnickle defendant had notice or knowledge that plaintiff had ever shown the land to Grossnickle. This defendant thinks is in itself sufficient to prevent a recovery by plaintiff.

Certainly the evidence here shows that plaintiff had not notified defendant that he had contacted Grossnickle as a prospective purchaser prior to the time the contract for the sale was made. And, just as certainly, we have held that under certain circumstances, such failure to notify, in the absence of knowledge obtained by the seller in some other way, bars a finding for the plaintiff. Fawley v. Sheldon, 180 Iowa 795, 163 N.W. 585; Gilbert v. McCullough, 146 Iowa 333, 125 N.W. 173; Blodgett et al. v. Sioux City & St. P. Ry. Co., 63 Iowa 606, 19 N.W. 799. Other cases might be cited.

However, some examination for the evidence in the case becomes important at this point. Plaintiff testified that on August 22, 1947, at Grossnickle's request, he took him out to show him farms which plaintiff had listed for sale. Grossnickle was a long-time neighbor of defendant, living about three miles distant. Plaintiff's testimony is that he drove to and along the Johnson farm, telling Grossnickle it was for sale at $225 per acre, and that plaintiff considered it about the best buy he had. Grossnickle said he was not interested; that the farm was weedy and the fences and buildings not good. Plaintiff testified to some further conversation; that he took Grossnickle to look at other farms; that on the way back in the late afternoon he attempted to take Grossnickle to talk to defendant but Grossnickle again said: 'I am not interested. Take me home.' Grossnickle did, however, ask plaintiff to take him along the west side of the Johnson farm, saying he had not seen that quarter for quite a while.

Further testimony by plaintiff shows that on the next morning, August 23, he went to the defendant's home but was unable to see him. Returning in the afternoon of the same day he was told by defendant that he had sold the farm to Grossnickle.

Some of the matters set forth above as part of plaintiff's testimony are denied by Grossnickle and by defendant. But since defendant raised the question of notice and knowledge only by motion for directed verdict, we must take the evidence in its aspect most favorable to plaintiff. The question is, assuming that those things are true which the jury could have found to be true, was the defendant entitled to a verdict direction notwithstanding?

It will be observed that, upon his own version, plaintiff had almost no opportunity to advise the defendant that Grossnickle was his customer. The sale was made over night. Grossnickle refused to go with plaintiff to talk with the defendant on the late afternoon of August 22nd. Plaintiff was unable to see the defendant on the morning of August 23rd although he called at his farm. Finding him in the early afternoon of the same day he was told (which apparently he had learned some hours earlier) that the sale was made. If plaintiff had a duty to tell his principal, the defendant, that he had produced Grossnickle as a customer, it is difficult to see how he could have performed it more promptly than he attempted to do; or, in another view, how he could have performed it before Grossnickle had contacted the defendant and they had made the contract of sale. We should be reluctant, in any event, to approve a rule of law which would place such an almost impossible burden upon the broker. Reasonable promptness, under all existing circumstances, seems all that should be required. However, it is not necessary to analyze that feature of the situation further. There are two other points appearing in the record which take all force and merit from defendant's contention concerning lack of notice or knowledge.

First, there is the plaintiff's testimony as to the brokerage contract. He says: 'We made the deal on the commission and then I said, 'Now, Mr. Johnson, if I find a buyer for this farm before I sign a contract with him I will bring the buyer to you so we will know where we are at, and I will expect the same thing of you,' and he said, 'All right, and if I get someone interested I will let you know too.''

The jury could have found that the defendant had agreed to notify plaintiff if he, the defendant, had a prospect. It is sure that, if he had done so in this case, he would have learned promptly, and before closing the contract, of plaintiff's claim. The defendant's want of notice or knowledge, in this viewpoint, stems from his own failure to do as he had agreed.

Nor, upon analysis, is there any authority in Iowa which requires a broker to give notice to his principal when the sale is made by the latter at the price fixed in the listing agreement. This case is ruled by Rounds v. Alee, 116 Iowa 345, 348, 89 N.W. 1098; and Kelly v. Stone, 94 Iowa 316, 62 N.W. 842. In the Rounds case we said: 'The fact that defendant did not know Gravesen had been sent to him by plaintiff is not controlling. It was no part of the contract. All he was to do was to find a purchaser who was ready, able, and willing to buy, or would in fact buy; and if he did this the contract was fulfilled, regardless of defendant's information of what he had done.'

The distinction between Rounds v. Alee, supra, and the authorities, supra, relied upon by defendant is shown thus in Gilbert v. McCullough, supra: 'In Rounds v. Alee, 116 Iowa 345, 89 N.W. 1098, an agent, having been employed to find a purchaser for land at a specified price, was held to be entitled to his commission if the efficient cause in procuring a purchaser, at the price named, to whom the principal sold, even though the principal knew nothing of what had been done; the agent not having had an opportunity of informing him. And this ruling is amply sustained by authority. Lloyd v. Matthews, 51 N.Y. 124; Craig v. Wead, 58 Neb. 782, 79 N.W. 718; Hovey v. Aaron, 133 Mo.App. 573, 113 S.W. 718; Graves v. Bains, 78 Tax. 92, 14 S.W. 256; 19 Cyc. 264. This case is to be distinguished from Rounds v. Alee, in that the sale was for a price less than that named to the agent, and, though the latter had submitted an offer equal to that received by the owner, he had withheld the name of the proposed purchaser.'

In the same case we said: 'The distinction between the above case and Rounds v. Alee is that, in the latter, the price was named, and the sale effected at such price, while, in Boyd v. Watson [101 Iowa 214, 70 N.W. 120], the consideration was a matter of negotiation. See, also, Blodgett v. Sioux City & St. P. Railway Co., 63 Iowa 606, 19 N.W. 799.'

This distinction is referred to in Fawley v. Sheldon, supra, cited by defendant. It is in point here. Defendant admittedly received the full cash price for his land--the same price at which he had listed it with the plaintiff. Nor did he become liable to another agent.

It is true that in Moore v. Griffith et al., 234 Iowa 1024, 14 N.W.2d 644, and Morton v. Drichel, 237 Iowa 1209, 24 N.W.2d 812, we made reference to the duty of the proker to make known to his principal that his customer is a prospective buyer. But it has been pointed out that this rule does not apply to all situations. See, generally, 12 C.J.S., Brokers, § 91a, pp. 209-210.

Defendant has no meritorious complaint at this point.

II. The next alleged error is based upon the refusal of the court to...

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    ......Corrie, 251 Iowa 896, 903, 101 N.W.2d 836, 840; Ducummon v. Johnson, 242 Iowa 488, 496, 47 N.W.2d 231, 236; Livingstone v. Dole, 184 Iowa 1340, 1343, 167 ......
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