Farmer v. Brokaw

• Decision Date: 17 May 1897
• Citation: 71 N.W. 246,102 Iowa 246
• Parties: THOMAS FARMER v. H. N. BROKAW, et al., Appellants
• Court: Iowa Supreme Court

71 N.W. 246

102 Iowa 246

THOMAS FARMER v. H. N. BROKAW, et al., Appellants

Supreme Court of Iowa, Des Moines

May 17, 1897

Appeal from Linn District Court.--HON. G. W. BURNHAM, Judge.

ACTION at law to recover an amount alleged to be due the plaintiff for services rendered in obtaining an application for life insurance. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.

Affirmed.

C. D Harrison and Jamison & Smyth for appellants.

Henry Rickel and M. P. Smith & Son for appellee.

OPINION

ROBINSON, J.

In the years 1891 and 1892 the defendants Fleming Bros. were agents for the Mutual Life Insurance Company of New York. Their territory included Linn county and fifteen other counties of this state. The defendant H. N. Brokaw was a local agent of the company at Cedar Rapids. In September, 1892, an application for a policy in the sum of fifty thousand dollars was obtained of Mrs. Sinclair, of Cedar Rapids, and a policy for that amount was subsequently issued to her. It was delivered by Fleming Bros., who at the same time received a check for four thousand three hundred and sixty dollars, which was the first payment due for the policy. The compensation or commission which was to be paid for services rendered in obtaining the application was one thousand four hundred and thirty-eight dollars and fifty cents. Fleming Bros. had no right to that commission, but all of it belonged to the local soliciting agent or agents who obtained the application. The plaintiff claims that he assisted Brokaw in obtaining the application, under an agreement by which the commission which should be earned in securing it was to be equally divided between them. All of it was in fact applied by Fleming Bros as a credit on an indebtedness which Brokaw owed to them. The petition contains two counts. The first count alleges that in August, 1892, the plaintiff was engaged by the defendants to assist them in soliciting life insurance in the company named; that, acting for the defendants, the plaintiff and Brokaw secured the issuing of the policy to Mrs. Sinclair; that one-half of the commission therefor was to be paid to the plaintiff, under a verbal agreement made by him with the defendants; that Brokaw, having received the commission with the consent and approval of Fleming Bros., has ever since retained it, and refused to pay it or any part of it to the plaintiff, and that the defendants have taken it and converted it to their own use, and refuse to pay any part thereof to the plaintiff; that after the application for the policy was secured, the defendants orally ratified the contract under which the plaintiff was entitled to one-half the agent's commission, and orally agreed to pay to plaintiff one-half of such commission. The second count sets out at considerable length the alleged agreement with the plaintiff, and the transaction which ended in the delivery of the policy to Mrs. Sinclair and the giving of the check to Fleming Bros., and alleges further that the check included the commission due the plaintiff and Brokaw; that, when it was given, the plaintiff called upon Fleming Bros. for the purpose of procuring his share of the commission; that Fleming Bros. admitted the receipt of the premium, including commission, but asked the privilege of using the check to have it photographed to promote their own business and that of the company, and told the plaintiff that they understood he was to have one-half of the commission, and that they would see that he received it; that at the time the plaintiff, being aware that Brokaw was betting upon the results of the election, was desirous of taking steps to secure his share of the commission, but, owing to the promises and assurances of Fleming Bros., took no steps to procure the same, but relied upon their promise that they would pay him as soon as they had photographed the check; that, notwithstanding their promise, Fleming Bros., with intent to defraud the plaintiff, without authority and in fraud of his rights, paid the money to Brokaw, who has since retained it; that Fleming Bros. and Brokaw, acting in concert with intent to cheat the plaintiff, have converted the money to their own use, and refuse to account for it. Brokaw filed an answer in which he denies the alleged agreement upon which the plaintiff relies, and denies all liability to him. Fleming Bros. filed an answer which contains a general denial and pleads a misjoinder of parties. The verdict and judgment were for one-half of the commission due on account of the Sinclair policy.

I. The appellee, in an additional abstract, denies that all the evidence introduced on the trial was made of record, and now claims that none of the questions presented by the appellants can be considered, because it is not shown that all of such evidence is before us. The facts upon which the claim thus made is based appear to be as follows: The evidence was preserved only by the shorthand reporter's report of the trial, and a skeleton bill of exceptions. It is not shown that the shorthand reporter's notes were certified by the reporter nor by the trial judge, nor is the transcript of the notes certified by the judge. The certificate of the shorthand reporter attached to the translation shows that it is a complete transcript of the notes as taken by him, but it is not shown that he took notes of all the evidence. The bill of exceptions was signed by the judge. That recites that "the plaintiff, to...