forrester-Duncan Land Co. v. Evatt

• Decision Date: 03 May 1909
• Citation: 119 S.W. 282,90 Ark. 301
• Parties: FORRESTER-DUNCAN LAND COMPANY v. EVATT
• Court: Arkansas Supreme Court

119 S.W. 282

90 Ark. 301

FORRESTER-DUNCAN LAND COMPANY v. EVATT

Supreme Court of Arkansas

May 3, 1909

Appeal from Scott Circuit Court; J. B. McDonough, Special Judge affirmed.

Judgement affirmed.

A. G Leming, for appellant.

Although it is a general rule that the refusal to grant a new trial upon the ground that the verdict is contrary to the law and the evidence will not be reviewed, it is otherwise where there is no evidence to sustain it. 14 Ark. 202.

F. A Youmans, for appellee.

It is not necessary that a contract with an agent to sell land should be in writing. It does not come within the statute of frauds. 83 Ark. 202. The verdict is not contrary to the evidence when there is any evidence tending to establish the allegation of the complaint.

OPINION

FRAUENTHAL, J.

The plaintiff, Annie Evatt, instituted this suit against the defendant, the Forrester-Duncan Land Company, and in her complaint alleged that she was the owner of a tract of land containing 150 acres in Scott County, and that she employed the defendant as her agent to sell said land. That the defendant is a domestic corporation engaged in the real estate business, and that one of the principal objects of its business is to act as the agent of land owners and to sell and dispose of their lands upon a commission. That on or about August 1, 1906, the plaintiff, through her husband, who was acting as her agent, employed the defendant by a verbal agreement to make sale of her land and listed her said land with the defendant for the purpose of such sale; that the defendant agreed to use its best efforts to find a purchaser for her said land; and for its services the defendant was to receive a commission of five per cent. of the selling price. She alleged that on February 21, 1907, while still her agent to sell said land, the defendant secured one Thomas Brott to purchase fifty acres of the land for the sum of $ 900; and thereupon the defendant, without notifying plaintiff of the above sale, procured one Elisha C. Beard to see and attempt to purchase from plaintiff in his own name, though for the benefit of defendant, the said fifty acres of land. That, being in entire ignorance of the prior sale made by defendant to said Brott, the plaintiff on March 1st conveyed the fifty acres of land to said Beard for the sum of $ 500; that thereupon, in pursuance of their scheme to defeat the plaintiff out of a part of the purchase price for which said land was sold to Brott, the defendant had the said Beard to execute a deed for the land to said Brott. That defendant actually furnished to Beard the $ 500 which he paid to plaintiff for the land, and paid Beard $ 10 for this service, and that Beard had no other connection with the purchase. That defendant actually sold the land to Brott for $ 900, which it collected, and at the time was her agent. The plaintiff therefore asked for a judgment against defendant for the balance of this collected purchase money, less the said commission.

The defendant denied, in its answer, that it had ever been employed by plaintiff to make sale of the land. It admitted that its manager at one time had a conversation with plaintiff's husband in which the said husband had said he would give him five per cent. commission to sell the land, 150 acres, for $ 2,500, but it alleged that such conversation did not amount to any contract by which an agency for selling the land was effected, and that it occurred long prior to the time that the manager became the official of defendant. It also admitted that it secured the said Beard to make the purchase of the fifty acres of the land from plaintiff, but alleges that this was done for the reason that the president of defendant company and the plaintiff were on unfriendly terms. It denied all other material allegations of the complaint.

Upon a trial of the cause, a verdict was returned in favor of the plaintiff, and defendant prosecutes this appeal.

It is urged by the defendant that there is not sufficient evidence to sustain the verdict of the jury. It appears from the testimony that the defendant corporation was organized in 1901 or 1902, and that C. E. Forrester was its president. Prior to March 1, 1906, H. J. Hall was engaged in the real estate business for himself, and on that date, having purchased stock of the corporation, he became the manager of the defendant and took complete charge of its business.

The evidence on the part of the plaintiff tended to prove that about the 1st day of August, 1906, the husband of the plaintiff, who was acting as her agent, made a verbal agreement with said H. J. Hall, who was then the manager of the business and affairs of defendant company, by which he listed the above lands of plaintiff with that company, and for the purpose of so listing the land, in conjunction with said Hall, examined plats and maps in the defendant's office to obtain the correct and definite description of the land, and left same with defendant's manager at said office; and that the manager of defendant company then agreed to find a purchaser for the land for a commission of five per cent. of the selling price. The defendant's manager controverted that testimony. He claimed that prior to March 1, 1906, and prior to the time of his connection with defendant company, he had a conversation with plaintiff's husband in which the husband spoke of placing the said land in his charge for sale at the commission of five per cent. of the selling price, but that no contract of employment was actually consummated. So that the question as to whether the plaintiff employed the defendant as her agent in August, 1906, to make sale of the land was purely a question of fact and peculiarly within the province of a jury to...