Flynn v. Jordal

• Decision Date: 12 July 1904
• Citation: 100 N.W. 326,124 Iowa 457
• Parties: FLYNN v. JORDAL.
• Court: Iowa Supreme Court

124 Iowa 457

100 N.W. 326

FLYNN

v.JORDAL.

Supreme Court of Iowa.

July 12, 1904.

Appeal from District Court, Winnebago County; C. H. Kelly, Judge.

Action for commission alleged to have been earned in finding a purchaser for land. Judgment for defendant, and the plaintiff appeals. Reversed.Andrew Miller and John Ott, for appellant.

Patterson & Gorden, for appellee.

LADD, J.

The plaintiff was to receive a commission of $1 per acre for finding a purchaser of the defendant's farm in Minnesota. On the 23d day of August, 1901, he induced William and Frank Schultz to sign a contract agreeing to purchase the land at the price proposed, paying $10 in cash and promising to pay “$500 on or before October 1, 1901, balance of equity due Ed Jordal, to be paid on or before March 1, 1902.” They were to assume the incumbrance on the land, and Jordal to furnish an abstract showing clear title, save the incumbrance, and “to execute and deliver to William Schultz and Frank Schultz warranty deed to premises above described as soon as same can be procured.” To this contract plaintiff attached defendant's name, though without authority. The defendant was notified by telegram; and in a letter on the 27th day of August, in response, approved of the sale, save that he suggested more than $10 should be paid before October 1st, and advised that no contract be given unless enough should be paid down to make it a sure sale. Nothing more was heard from him until he returned to Buffalo Center some time in October, though plaintiff had urged him to hurry up with the abstract, and notified him on the 30th day of September that the Schultzes had deposited $500 in a bank with which to make the payment of October 1st. Such deposit had been made, and was allowed to remain until some time in November. Shortly after the defendant's return he concluded to complete the sale, and proceeded to obtain the abstract. Before he had procured it, the Schultzes had withdrawn the money, and given up ever being able to acquire the land. Whether this was owing to the dilatory tactics of the defendant or because of the discovery that defendant's “equity” was more than was anticipated, is in dispute. If they subsequently offered to complete the purchase, it was upon plaintiff's assurance that Jordal would not sell, and not in good faith. Thereafter defendant threatened the Schultzes with a suit for damages unless they would complete the deal.

The court, in the fifth instruction, advised the jury that, if the purchasers were accepted by defendant “as being sufficient and satisfactory to him,” the verdict should be for plaintiff; if not, then, in order to warrant recovery, it must be made to appear that “such purchasers were ready, willing, and able to perform their part of said contract within a reasonable time from the time named in said contract.” This was inconsistent with the fourth instruction--that the contract “was subsequently ratified and confirmed by defendant, and the same was and is as binding upon the defendant as though the same had been signed by him.” In Johnson Bros. v. Wright, 99 N. W. 103, we held that, to earn his commission for services rendered in finding a purchaser of land, where no sale is actually consummated, the agent must either procure a valid obligation to buy, and tender it to the vendor, or bring the proposed purchaser and the vendor together, so that a contract of sale may be entered into if the latter so elects. The contract, though unilateral when so tendered, is prima facie evidence of the purchaser's readiness and willingness to buy, but furnishes no indication of his ability to perform its conditions. See Kalley v. Baker, 132 N. Y. 1, 29 N. E. 1091, 28 Am. St. Rep. 542;Iselin v. Griffith, 62 Iowa, 670, 18 N. W. 302. It is then for the principal to decide whether the purchaser is acceptable, precisely as when the purchaser is presented personally; and if he executes the contract on his part, or ratifies the act of his agent, though unauthorized, in attaching his name thereto, it is as binding upon him as when the parties...