Farmer v. Holmes

• Decision Date: 18 November 1916
• Citation: 160 N.W. 143,35 N.D. 344
• Parties: FARMER v. HOLMES et al.
• Court: North Dakota Supreme Court

35 N.D. 344

160 N.W. 143

FARMER

v.HOLMES et al.

Supreme Court of North Dakota.

Nov. 18, 1916.

Syllabus by the Court.

The test of an action on the quantum meruit is that the plaintiff shall allege the doing of the work at the request of the defendant and that for the work he reasonably deserves to have a specified sum.

Complaint examined, and held to state an action on the quantum meruit.

If a landowner sends to an agent various lists of land at a certain net price, and the agent interests a prospective purchaser and such purchaser refuses to pay the list price, and wants more land than that offered, and is referred by the agent to the principal to see if he can make a deal with him, and the principal keeps on dealing with the prospective purchaser, both by himself and through the agent, and urges the agent to continue using his influence with the purchaser, and afterwards the principal meets with the purchaser alone and effects a sale for less than the list price and for more land than actually listed, but yet contemplated in the transactions between the purchaser and the agent, such agent can recover from such principal and on the quantum meruit a commission on such sale for his services performed.

Where a real estate agent furnishes a buyer upon terms which, even though not originally contemplated, are satisfactory to his clients, and a sale is made on such terms, such agent will be entitled to recover the reasonable value of his services rendered.

Whether the real estate agent was in fact the procuring cause of the sale which was consummated is held, in the case at bar, to be a question for the jury and not for the court to pass upon.

Where a real estate agent is employed to furnish a buyer upon terms acceptable to his principal and such principal is himself to consummate the agreement or sale, it is immaterial whether such agent acts by himself or through a third party, and whether there are one or two joint vendees, provided the vendee or vendees are acceptable to the principal, and which fact will be presumed from the mere closing of the deal.

A party must offer to prove the facts sought to be elicited from his witness before he can assign error upon an objection sustained to a question, the competency of which is not apparent on its face.

It was not an error to instruct the jury that “the words ‘procuring cause,’ as applied to this case, mean that if you find from a fair preponderance of the evidence that the contract was as plaintiff claims, then a procuring cause means the original discovery of the purchaser by the broker, and the starting of the negotiations by him, together with the final closing by or on behalf of his client with the purchaser.”

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

Action by Roy M. Farmer against C. D. Holmes and J. E. Bakke, copartners doing business as Holmes & Bakke. From a judgment for plaintiff, defendants appeal. Affirmed.

Lawrence & Murphy, of Fargo, for appellants. Fowler & Green, of Fargo, for respondent.

BRUCE, J.

This is an action to recover 50 cents an acre which it is claimed is the reasonable value of services rendered in selling 3,456.75 acres of land for and on behalf of the defendants, Holmes and Bakke. The court refused a motion to direct a verdict for the defendants, and the defendants now appeal from a judgment rendered on the verdict of the jury.

The complaint alleges “that the plaintiff was employed by said defendants to aid them in and about their business of selling land, and to find and bring purchasers for lands owned by said defendants and which said defendants otherwise had for sale upon a commission which defendants promised to pay this plaintiff,” and “that during the time when plaintiff was employed, as aforesaid, by said defendants, he found and furnished, as customers for the purchase of land from said defendants, one Clarence C. Schuyler and one Alex. Stern; that the defendants with the aid and assistance of this plaintiff sold and procured to be conveyed to said Alex. Stern 3,456.75 acres of land in the counties of Becker, Clearwater, and Mahnomen in the state of Minnesota; that the transactions concerning said sale were had by plaintiff with said Alex. Stern, through said Clarence C. Schuyler, said Schuyler acting for said Stern,” and “that plaintiff's services in and about the making of the sale aforesaid were reasonably worth, and the reasonable commission upon said sale for the services rendered by this plaintiff is,” the sum of 50 cents per acre, and the aggregate amount of $1,728.37; and “that no part of said commission has been paid by said defendants.”

The contention of the plaintiff and respondent is that he was employed by the appellants to procure purchasers for them, and was to be paid a reasonable commission for furnishing such purchasers; that he was to have nothing to do with fixing prices or terms or with closing deals, but was simply to procure purchasers; that he did procure purchasers in the persons of Stern or Schuyler and Stern, and that appellants closed a deal for the sale of 3,456 acres of land, and that plaintiff was therefore entitled to a reasonable commission, which he alleges to be 50 cents an acre. Appellants, on the other hand, contend that there was an express contract of agency between the parties whereby the plaintiff was to sell the land at a price which should net to the defendants a certain sum, and that he was to obtain his commission, if at all, from what he got in excess of that price, and, further, that respondent did not, as a matter of fact, procure any purchasers at all.

[1][2] It is clear from the record which is before us that, if the plaintiff is entitled to recover anything at all, it must be upon the quantum meruit, and it is first claimed by the appellant that no such action is set forth in the complaint. In this contention, however, counsel is in error. “Assumpsit on a quantum meruit,” says Mr. Phillips in section 97 of his work on Code Pleading, “lies for work done at the request of another. It differs from indebitatus assumpsit in this, that instead of alleging a promise to pay a certain sum specified, the plaintiff alleges, first, the doing of the work, and then a promise to pay as much as he reasonably deserved, and that for the work he reasonably deserves to have a specified sum.” Pomeroy holds that the implied promise need not be pleaded, but may be inferred from the facts stated. This is our holding. Pomeroy, Code Remedies (3d Ed.) §§ 537 to 541. The complaint meets the latter test. Even if it does not technically do so, it was upon this theory that the case was tried, and any ambiguity must be resolved in favor of the verdict.

But was there any evidence of services rendered by and at the request of the defendants, the compensation for which was not already provided for and covered by some special contract? We think there was. Special contracts there had been, it is true, in the past, but, as we view the evidence, the transaction before us was outside of and independent of them. The plaintiff had for some time been acting as the selling agent of the defendants. During this time he had been given various lists of lands, and accompanying these lists were letters, stating that his commission was to be deducted from the selling price, a net price to the defendants being provided for. In the particular transaction before us, however, the plaintiff had been unable to effect a sale at the list prices and of the land alone which had been listed with him. He had been repeatedly urged, however, to use his best endeavors. He had therefore inserted an advertisement in the paper, asking for a purchaser for the lands which he controlled, and which were only 2,500 acres. In response to this advertisement a man by the name of Schuyler called upon him and told him that he had several parties in mind who wanted to buy; that he wanted to get hold of some lands, cheap lands; that he had several clients in mind, and would place his time against their money in the purchase. The plaintiff then gave to Schuyler a description of the lands listed with him, and told Schuyler that he thought Bakke had other lands at a cheaper figure, but was not sure. Schuyler then said that he would want more than the plaintiff had in that 2,500-acre tract, wanted more land than that, perhaps 4,000 acres, and asked the plaintiff if he could get a cheaper figure than the list price of $7.50. Plaintiff then answered that he could not give him that, but Bakke might be able to give him a better figure, and that he would phone Bakke. This plaintiff did on the next day or so, and told Bakke that he had a client for the purchase of these lands, that it looked good to him, and that if Bakke had time, he would like him to run up and meet Schuyler. Later, and a short time afterwards, Bakke came to Fargo, and plaintiff took him over to see Schuyler, and Schuyler went over in a general way with Bakke the conversation he had had formerly with plaintiff and after this conversation Bakke was enthusiastic, and said that he thought he had a sale effected through Schuyler. This conversation was in December, 1911. After this meeting plaintiff had several talks with Bakke over the telephone, and on these occasions Bakke kept asking him how this sale to Schuyler was progressing, and plaintiff told him that it was hard to effect a sale on account of the fact that the pieces were so separated, and asked Bakke for a descriptive write-up of each piece of land. Bakke, however, told him he could not do this. On January 17, 1912, the plaintiff wrote Bakke as follows:

“I have been talking with Mr. Schuyler today, and he wants a price on all the land you have there, and would like more than 2,500 acres. Kindly call me up by phone to-morrow, or advise me as soon as you can, the best price you can put on the whole tract, and also send me revised lists. He has a fellow who will put in at least $5,000 cash and is...