Frost v. Houx

• Decision Date: 15 April 1907
• Citation: 89 P. 568,15 Wyo. 353
• Parties: FROST v. HOUX ET AL
• Court: Wyoming Supreme Court

89 P. 568

15 Wyo. 353

FROST v. HOUX ET AL

Supreme Court of Wyoming

April 15, 1907

ERROR to the District Court, Big Horn County, HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Affirmed.

W. L Walls and E. E. Enterline, for plaintiff in error.

The plaintiff was never in a position to make a sale. He was unacquainted with the terms of sale, and did not make it. The only information the purchaser received from the plaintiff was the price, nothing as to terms. In addition to that the purchaser had theretofore been communicating with the owner and later fixed the terms and made his agreement with the owner. The plaintiff knew that the defendant, Jesse M. Frost did not own the ranch, because he requested the latter to write to his father for the terms of sale.

It was incumbent upon the plaintiff to find a buyer who was able, ready and willing to purchase on the terms proposed by his principal before he could successfully claim his commission. (Fisk v. Henari, (Ore.), 9 P. 322; Finnerty v. Fritz, 5 Colo. 174; Buckingham v. Harris (Colo.), 15 P. 817.) It was not alleged nor did the court find that the defendants had agreed to furnish the plaintiff with the terms of sale, nor that they did other than the price.

H. S. Ridgely, for defendant in error.

The only proper conclusion to draw from the evidence is that defendant at one time thought he could sell this property to Marston, who finally bought it. But concluding, as he says in his testimony, that the proposition was too large for Marston to handle, he listed it with plaintiff. As soon as Marston saw the property was on the market he wanted to purchase it. Defendant thereupon thought he could conclude the deal and avoid paying the commission. He could certainly conclude the deal without plaintiff's knowledge or consent, but the law does not permit him to escape paying the commission. He cannot have the benefit of plaintiff's services without paying for them, as the plaintiff from the evidence certainly produced a purchaser, not only willing and ready to buy, but who did buy. And this must have been the view taken by the trial court upon the evidence. (Plant v. Thompson, 22 P. 726; Barnes v. German Sav. & L. Soc., 58 P. 569.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

Frank L. Houx, one of the defendants in error, instituted this action in the District Court of Big Horn County to recover from Jesse M. Frost, plaintiff in error, and Mahlon L. Frost and Nancy E. Frost, his co-defendants in error, the sum of $ 500, which he alleged was due him as commission for the sale of certain real estate and personal property. The case was tried to the court without a jury, and judgment rendered in favor of Houx and against Jesse M. Frost for the amount claimed, and the case dismissed as to Mahlon L. and Nancy E. Frost. Jesse M. Frost brings error.

The District Court, upon request, stated its findings of fact and conclusions of law in writing; and it is urged by the plaintiff in error that the findings of fact are not sustained by the evidence; that the judgment is not sustained by the findings and is contrary to the evidence, and contrary to law.

The facts material to the issues here, as found by the court are, that Jesse M. Frost listed for sale with Houx, a real estate agent, certain property consisting of a ranch belonging to his father and mother, the other parties to the suit, ranch cattle and other property in which he had an interest; that said property was listed as a whole to be sold at the gross price of $ 18,000; that it was agreed between Houx and said Frost that Houx should be paid by Frost a commission of $ 500, in case a sale of said property should be negotiated through the agency of Houx; that through the agency of Houx and by means of advertisements made by him, and through his efforts in securing a purchaser for said property, negotiations were commenced and entered into...