Fawley v. Sheldon
Decision Date | 26 June 1917 |
Docket Number | 31337 |
Citation | 163 N.W. 585,180 Iowa 795 |
Parties | C. I. FAWLEY, Appellee, v. C. H. SHELDON, Appellant |
Court | Iowa Supreme Court |
Appeal from Linn District Court.--MILO P. SMITH, Judge.
ACTION to recover commission on the sale of real estate. There was a trial to a jury and a verdict and judgment for plaintiff. Defendant appeals.--Reversed.
Reversed and remanded.
F. L Anderson, for appellant.
Voris & Hass, for appellee.
The petition alleges that defendant was the owner of a stock of hardware, and verbally agreed to pay plaintiff the sum of $ 150, as a commission, if plaintiff would find a purchaser to whom said stock might be sold; that, pursuant to such agreement, plaintiff did find and procure one Miller as a purchaser, and said stock was sold to Miller. Defendant denied all allegations of the petition.
Appellant contends that plaintiff declared upon an oral agreement to find a purchaser, and that the proof does not sustain the allegations, because the testimony showed that the undertaking was to make a sale for cash; and that the proof shows, without dispute, that the sale was not for cash, because defendant took a note for $ 3,900 in part payment; and that, therefore, plaintiff had not performed his agreement, and is not entitled to a commission.
Appellee contends that, although the plaintiff in his testimony does not word the contract just as alleged in the petition, yet it means the same thing; that is, that plaintiff was to find a purchaser. In his testimony, plaintiff says, "Mr. Sheldon told me that he would pay me $ 150 commission if I would sell the stock for him;" and that later, defendant repeated his former statement. The defendant testifies:
On cross-examination, he testified:
A part of this testimony, or the way he puts it in one place therein, where he says that he expected plaintiff to get a buyer, sustains the allegations of plaintiff's petition, although plaintiff puts it that he was to sell. We think it cannot be seriously claimed that, by the use of the words that plaintiff was to sell, either party contemplated that plaintiff was to have authority to conclude a binding contract to sell defendant's property. And, as said in some of the cases, such words usually mean that the agent is to negotiate a sale by finding a purchaser, etc. See Keim v. Lindley, (N. J.) 30 A. 1063, 1073; Ford v. Easley, 88 Iowa 603, 55 N.W. 336; Bird v. Phillips, 115 Iowa 703, 87 N.W. 414; Furst v. Tweed, 93 Iowa 300, 61 N.W. 857; Holmes v. Redhead, 104 Iowa 399, 73 N.W. 878. So that we think the allegations of the petition are sustained, in so far as the point is made that the proof showed a contract to sell, whereas the petition alleged a contract to find a purchaser. It is contended by appellant that, if the contract is to make a sale, and the sale is to be a sale for cash, a commission is not earned unless the agent makes a cash sale, and the acceptance of a note is not cash. The plaintiff in his testimony said nothing as to the terms of sale,--that is, as to whether it should be cash or not,--and defendant testifies that it was to be a cash sale. Appellant cites authority that, under plaintiff's testimony, a sale without any terms' being mentioned as to whether it should be cash or not, is a cash sale.
In the instant case, the undisputed evidence is that plaintiff sold his stock of goods for $ 1,500 cash and a note signed by one Breed, for $ 3,900. But, as we have already held, the jury was justified in finding that, under the testimony, the contract was that plaintiff was to find a purchaser. The more important point in the case, we think, is the question as to the effect of plaintiff's failure to inform defendant that Miller, the purchaser, was plaintiff's customer. The appellant contends that the evidence is undisputed that defendant did not have such notice or knowledge before the consummation of the trade. Appellee contends that there is evidence tending to show that defendant did have such knowledge. The question is presented by appellant in different ways; first, by motion to direct a verdict for the defendant. Of course, a different rule obtains on motion to direct a verdict, and on the submission of the case to the jury under instructions. If the evidence was in conflict as to defendant's knowledge or notice of that fact, then the motion to direct a verdict on that ground was properly overruled; but, in submitting the case to the jury, the effect of the want of such notice, if the jury should so find, should be submitted under proper instructions. The question was raised further by appellant by offered instructions by him, and we think his exceptions to the instructions given are sufficient to save the point, although counsel for appellee contend otherwise. The trial court instructed the jury in Instruction No. 4, which is, in part, as follows:
"And the fact, if it be a fact, as claimed by defendant, that plaintiff did not communicate to defendant that said Oscar Miller was the plaintiff's customer is material only as it may be given weight with all of the other facts and circumstances, as tending to prove that plaintiff did not procure such purchaser."
The appellant offered a number of instructions covering in different ways the thought that it was material that plaintiff should have notified the defendant that Miller was plaintiff's customer, and that a failure so to do would, under certain circumstances, prevent a recovery by plaintiff. Appellant's contention at this point now is that the evidence was such that the jury could have found the facts to be such as to bring the case within the law as announced in Blodgett v. Sioux City & St. P. R. Co., 63 Iowa 606, 19 N.W. 799, and other like cases which will be referred to later; while appellee contends that the case is more like Rounds v. Alee, 116 Iowa 345, 89 N.W. 1098; although, as we understand his argument, he concedes that Instruction No. 4 is erroneous, but, as said, claims that the appellant did not properly except to it.
There are some other circumstances which perhaps ought to be referred to, bearing on the question as to whether or not defendant had knowledge or notice that Miller, the purchaser was the plaintiff's customer, so as to claim a commission from the defendant, and as bearing on the question as to whether the terms of the sale were agreed upon or...
To continue reading
Request your trial