Goldman v. Weisman
| Decision Date | 14 November 1913 |
| Docket Number | 18,248 - (63) |
| Citation | 143 N.W. 983,123 Minn. 370 |
| Parties | JACOB GOLDMAN v. ISADORE WEISMAN and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $3,000 as commissions earned under a certain contract. The case was tried before Steele, J., who granted defendants' motion to strike out all the testimony offered by plaintiff under his second cause of action to recover for commissions or for services alleged to have been performed in the sale of real estate, except so much of that testimony as related to an alleged sale of 20 acres, and a jury which returned a verdict of $100 in favor of plaintiff. From an order denying plaintiff's motion for a new trial, he appealed. Reversed.
Broker -- striking out evidence.
1. Action of the trial court in striking plaintiff's evidence of performance of a contract of agency to sell lands, on the ground that there was no evidence of production of purchasers ready, able, and willing to buy on defendants' terms, held error; there being evidence tending to show that plaintiff had secured such customers and was ready to produce them, when defendants, without just reason or excuse, repudiated the contract.
Termination of agency affirmative defense.
2. Termination of a revocable agency to sell land, by sale made by the principal before performance by the agent, is an affirmative defense, which need not be negatived by plaintiff in order to make out a prima facie case.
Admission by defendant.
3. Plaintiff's testimony that defendants, in repudiating the contract, stated the land had been sold, was not substantive evidence of the fact.
Allegations in issue.
4. A defense cannot be made out merely upon allegations of the complaint when the same have been put in issue by denials.
Measure of damages.
5. The measure of damages, under the issues, for the principal's breach of the contract, held to be the loss incurred by the agent on all sales actually made, not exceeding, however, the stipulated commissions specified in the contract.
Richard & Coe, for appellant.
Edwin C. Garrigues and Wright & Matchan, for respondent.
The complaint contains two causes of action. We are concerned only with the second. It alleges an agreement between the parties whereby plaintiff undertook to sell lands for defendants, for a stipulated commission; performance, and failure of defendants to pay; also repudiation by them after plaintiff's performance, and resulting damages. Defendants denied all claims except the making of the contract. At the beginning of the trial plaintiff, under direction of the court, elected to stand upon his claim of damages. When he rested in chief, the court struck out practically all the evidence adduced to show performance, and, upon a case settled, after verdict and denial of a motion for a new trial made on the minutes, he appealed from the order.
1. On December 22, 1908, the parties entered into a contract concerning the sale of Texas lands which the defendants were endeavoring to sell, whereby it was substantially agreed that plaintiff would act as defendants' agent in obtaining customers for a specified commission payable on consummation of sales plaintiff to have no power to obligate defendants except as to commissions, which were to be in full for all services rendered, nor to receive any moneys from purchasers, the same to be sent directly by them to defendants, and the latter to be in no wise bound until receipt thereof, when contracts were to be executed. The contract was not limited as to time.
The evidence stricken tended to show the following: Plaintiff solicited sales of the lands and succeeded in interesting prospective purchasers, which he reported to defendants receiving their assurance that such sales would be satisfactory. All purchases, however, were conditioned upon plaintiff's promise to make personal inspection of the lands, in order that the buyers might be assured that the same were as represented in defendants' circulars. He did so, reporting favorably, and subsequently advised defendants that his customers were ready to close on defendants' terms, whereupon they informed him that the lands had been sold in bulk, repudiated and terminated the contract, and refused to pay him commissions or for services. Plaintiff also offered evidence of the value of the services performed. The motion to strike was granted on the ground that there was a...
To continue reading
Request your trial