Dunn v. Blue Grass Realty Co.

• Decision Date: 09 March 1915
• Citation: 163 Ky. 384,173 S.W. 1122
• Parties: DUNN v. BLUE GRASS REALTY CO.
• Court: Kentucky Court of Appeals

173 S.W. 1122

163 Ky. 384

DUNN v. BLUE GRASS REALTY CO.

Court of Appeals of Kentucky.

March 9, 1915

Appeal from Circuit Court, Madison County.

Action by Butler Dunn against the Blue Grass Realty Company. Judgment for defendant, and plaintiff appeals. Reversed.

Grant E. Lilly, of Richmond, for appellant.

Cobb &amp Collins and C. C. Wallace, all of Richmond, for appellee.

MILLER C.J.

The appellant, Butler Dunn, is a farmer, and at the times hereinafter stated he owned a farm of 134 acres in Madison county, upon which he resided. The defendants, Jesse Cobb and J. Tandy Eads, do a real estate business under the name of the "Blue Grass Realty Company." In July 1912, Dunn listed his farm with the defendants for sale, at a minimum price of $85 per acre. A few days thereafter appellees through Eads, who acted for his company throughout these negotiations, reported to Dunn that they had a prospective purchaser, whose name he declined to disclose, but that the purchaser would not give as much as $85 per acre. At that price the farm would have sold for $11,421.45. Upon due consideration, and after Eads had stated to Dunn that the purchaser had grown indifferent and cold, Dunn authorized appellees to sell the farm for $10,500. Shortly thereafter Eads again reported to Dunn that the prospective purchaser was still cold and indifferent, but that they believed the purchaser would take the farm at $10,500 if Dunn would "throw in" the crops then growing on the farm. Dunn finally agreed to do that; and, when he went to appellees' office on July 11th to close the sale, he was informed that appellee Cobb was the purchaser. The contract of sale was reduced to writing on the morning of July 11th and the deed was then drawn and executed and delivered by Dunn and wife on the afternoon of the same day. Cobb and Eads retained the usual commission of $210, or 2 per cent. of the purchase price, and paid Dunn the remaining $10,290. It developed later, however, that the prospective purchaser to whom Eads referred was May Collins, and that Collins was willing to buy the Dunn farm at $85 per acre, or a total of $11,421.45, provided he could buy an adjoining strip of about 20 acres from Phelps. Jake Collins, representing May Collins, and Eads, of the defendant firm, undertook to persuade Phelps to sell the 20-acre strip to Collins, but Phelps, at first, refused. Finally, however, Phelps agreed to sell Collins the 20 acres, at $100 per acre, whereupon Collins closed the contract with the appellees and bought the Dunn farm from Cobb at the price of $11,421.45, or $85 per acre. During the negotiations Collins thought he was to buy from Dunn. As above stated, Dunn's deed to Cobb was executed on the afternoon of July 11, 1912. Cobb's deed to Collins was dated the next day, and in closing the two transactions Cobb gave his check upon a bank in which he had no funds, under an agreement with the bank that his check to Dunn should be paid with the proceeds of Collins' check to Cobb; it being supposed that in the ordinary course of business, Cobb's check would not reach the bank until after Collins' check had been collected. This proved to be true, and there was no overdraft made by Cobb, although the precaution had been taken against that contingency. Shortly thereafter Dunn brought this action to recover from Cobb and Eads the sum of $1,131.45, the difference between the sum of $11,421.45, which Cobb received from Collins for the Dunn farm, and $10,290, the net purchase price which Cobb paid to Dunn for the farm, upon the theory that Cobb was acting as the agent of Dunn throughout the entire transaction, and that Dunn was entitled to the profit which Cobb had made in making the sale. The case was tried three times, before a jury. Upon the first trial the jury failed to agree; upon the second trial Dunn obtained a verdict for $500, but the court set aside the judgment thereon, because the verdict was contrary to the evidence and the instructions of the court, which required the jury to fix its verdict at $1,131.45, in case it found for Dunn. Appellant excepted to the order granting the new trial, and made up a bill of exceptions. Upon the third trial the verdict was for the defendants. Dunn prosecutes an appeal from the order of the court setting aside the verdict and judgment granting a new trial after the second trial, and also appeals from the judgment for the defendants upon the third trial.

As neither brief has complied with section 3 of rule 3 (154 S.W. vii) of the court, requiring that a classification of the questions discussed, and the authorities relied on and cited under the appropriate heading, should accompany every brief, we have had some difficulty in formulating the grounds upon which a reversal is asked; but as there has been no motion to dismiss the appeal for this failure, we will dispose of the case.

1. It is first insisted that the court erred in setting aside the verdict rendered upon the second trial. The instructions given upon the second and third trials, were identical, and read as follows:

"First. If the jury believe from the evidence that at the time the plaintiff sold the farm to Cobb, the defendants Cobb and Eads had a bid on the farm from May Collins for a higher price than the one at which it was sold to Cobb, or, if the jury believe from the evidence that the defendants, before the sale to Cobb, had secured a prospective purchaser for the farm at a higher price than the one paid by Cobb, and that for the purpose of inducing the plaintiff to sell the farm to Cobb, the defendants represented to the plaintiff that their prospective buyer had grown indifferent when they did not in good faith believe such prospective purchaser had grown indifferent, the jury should find for the plaintiff.

Second. Unless the jury believe from the evidence, either that at the time the sale was made to Cobb the defendants had a bid on the farm from May Collins at a higher price than Cobb paid, or that the defendants, before the sale to Cobb, had secured a prospective purchaser for the farm at a higher price than Cobb paid, and that for the purpose of inducing the plaintiff to sell the farm to Cobb, they represented to the plaintiff that their prospective purchaser had grown indifferent, when they did not, in good faith believe such statement to be true, the jury should find for the defendants.

Third. If the jury find for the plaintiff they should allow him what they may believe from the evidence is the difference between the sum Cobb paid for the farm and the sum for which Cobb sold it, but if any sum is allowed the plaintiff, it should be $1,131.45, the sum claimed by the plaintiff in the petition.

Fourth. Nine of the jury can make a valid verdict, but if all the jury do not agree upon a verdict, it must be signed by all who agree to it."

No objection is taken by either party to the instructions; but the court set aside the verdict and granted a new trial upon the authority of Taylor v. Howser, 12 Bush, 467 Ray v. Jeffries, 86 Ky. 369, 5 S.W. 867, Jesse v. Shuck, 12 S.W. 304, 11 Ky. Law Rep. 464, Baries v. Louisville Electric Light Co., 118 Ky. 833, 80 S.W. 814, 25 Ky. Law Rep. 2303, Id., 118 Ky. 830, 85 S.W. 1186, 27 Ky. Law Rep. 653, and other similar cases which lay down the rule that where the damage can be measured, and the verdict of the jury is such as to demonstrate that the proof was disregarded, and the law of the case, as embodied in the...