Fawley v. Sheldon

• Decision Date: 26 June 1917
• Docket Number: No. 31337.,31337.
• Citation: 180 Iowa 795,163 N.W. 585
• Parties: FAWLEY v. SHELDON.
• Court: Iowa Supreme Court

180 Iowa 795

163 N.W. 585

FAWLEY

v.SHELDON.

No. 31337.

Supreme Court of Iowa.

June 26, 1917.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action to recover commission in the sale of real estate. There was a trial to a jury and a verdict and judgment for plaintiff. Defendant appeals. Reversed.F. L. Anderson, of Marion, for appellant.

Voris & Haas, of Marion, for appellee.

PRESTON, J.

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:

“I told Mr. Fawley that if he could sell my stock of hardware for cash I would pay him a commission. I had no further talk with him about it until after I had completed the sale to Mr. Miller.”

On cross-examination he testified:

“He told me that he was advertising the stock, and showed me some letters he had received. I think I read one or two of them. He told me that he had written some letters. I know he told me he was trying to sell the stock; he told me he was doing some advertising. I suppose that it was costing him something to advertise--it usually did me. Yes, I knew as a matter of fact he was trying to dispose of that stock for me, and I knew it was in pursuance of the talks he had had with me before that I was to pay him a commission if he sold it. The first time Mr. Breed came to the store, I asked him where he got his information, and he said Joe Streator had told him of the stock. Breed wanted to trade for it, and I told him the stock was not for trade. When he went away the first time, the transaction, as far as he and I were concerned, was ended. A few days after that, I don't remember just how long, Mr. Breed returned to the store with Oscar Miller. Miller was represented to be the man who wanted to buy the stock. Fawley came to the store a little later and was introduced to Mr. Miller. He was acquainted with Mr. Breed. After we had done some talking, I gave them the refusal of the stock for a week or ten days. I gave them the price at which I would sell. No, I hadn't told Mr. Breed the price I would take when he was there the first time. The first time I named a price was that mornning when Mr. Miller was there. When Breed came there the first time and commenced talking trade, I didn't want to do business with him at all. But when Miller was brought there by Breed, I fixed the price, and told them my price was 100 cents on the dollar, invoice price, plus 5 per cent. for freight. Q. That is what you had told Mr. Fawley you would sell for, wasn't it? A. I don't remember whether I did or did not. Q. You wanted Mr. Fawley to make a sale of the place? A. Yes, I told him-- Q. Didn't you tell him what the price would be? A. No, sir; I didn't tell him what the sale would amount to, what the stock would amount to. Q. Well, you told him it was 100 cents on the dollar? A. Whatever it was; yes, I told him 100 cents on the dollar. Q. How much were you to have for freight? A. Five per cent. Q. When did you tell him that? A. That morning, I think, after I talked with Mr. Miller and Mr. Breed. Q. But what did you tell him about the price at the time you listed it with him? A. I don't remember as I told him. Q. How did you expect him to sell it unless he knew what the price was? A. To the best of my recollection, I told Mr. Fawley if he sold the stock of hardware I would pay him a commission. Q. Didn't you give him any price? A. Nothing was said about the price. Q. Then you expected him to get a buyer and you would fix the price, did you? A. I expected to have something to say about it. Q. As a matter of fact, when the buyer came, you did fix the price? A. Yes, sir. Q. And told Mr. Fawley the price you had fixed? A. I told him that day the price I had fixed; yes, sir.”

[1] 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. O'Reilly, 54 N. J. Eq. 418, 34 Atl. 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.

[2] 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 were 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. Railway, 63 Iowa, 606, 19 N. W. 799, and other like cases...