Graner v. Boring

• Decision Date: 01 May 1928
• Docket Number: (No. 6202)
• Citation: 105 W.Va. 505
• Court: West Virginia Supreme Court
• Parties: Lafayette Graner, etc. v. Josephine Boring

105 W.Va. 505

Lafayette Graner, etc.

v.Josephine Boring

(No. 6202)

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1928.

Decided May 1, 1928.

1. Appeal and Error Errors Not Raised on Motion for New Trial, and Not Saved by Special Bill of Exceptions, Will Not be Considered on Appeal.

Errors not brought to the attention of the trial court in motion for new trial, and not saved by special bill of exceptions will not be considered in the appellate court, (p. 508.)

(Appeal and Error, 3 C. J. § 849; 4 C. J. § 1786.)

2. Trial Binding Instruction Must Present All Material Phases of Issue to Which it Relates on Which There is Sufficient Evidence; Giving Binding Instruction Which by Narrowness Obviously Tend, s to Mislead Jury, Even Though Correct as to One or More Phases of Case, is Error.

A binding instruction must be broad enough in its scope and effect to present all material phases of the issue to which it relates on which there is sufficient evidence. If by reason of its narrowness it obviously tends to mislead the jury, even though correct as to one or more phases of the case, it is error to give it to the jury. (p. 510.)

(Trial, 38 Cyc. p, 1634.)

(Note: Parenthetical references by Editors, C. i Cyc. Not part of syllabi.)

Error to Circuit Court, Ohio County.

Action by Lafayette Graner, doing business as the Graner Realty Company, against Josephine Boring. Judgment for plaintiff, and defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

Charles F. Paul, Jr., and P. J. McGinley, for plaintiff in error.

John P. Arbenz and A. E. Bryant, for defendant in error.

Lively, Judge:

Lafayette Graner, doing business as Graner Realty Company, sued Josephine Boring for commissions claimed by him on the sale of her property in the City of Wheeling, and obtained verdict and judgment against her for $660.00 on September 23, 1927, from which she prosecutes error.

Mrs. Boring was devised a one-fourth interest in the real estate, the other three-fourths being devised to her three children, Mary, Loretta and John, all of mature age. The basis of plaintiff's claim for commission is a writing signed by Mrs. Boring dated July 7, 1924, addressed to Graner Realty Company, and accepted and acted upon by it, which in part reads as follows: "In consideration of your endeavor to procure a purchaser for the property described herein and registration of the same with the Wheeling RealEstate Board, the undersigned grants you the sole and exclusive right for a period of six months, and thereafter until thirty days notice in writing has been given to terminate the same, to sell said property at the price and upon the terms stated here hereon, or at any other price or terms to which the undersigned may consent. The undersigned further agrees to assist and cooperate in such sale. The undersigned hereby agrees to pay you commission in accordance with the Wheeling Real Estate Board rates printed on the reverse side of this contract in case said property or any portion thereof is sold by the undersigned, by you, or any person during the term of the contract; or, within three months after its expiration through your instrumentality, or that of any board member. Exclusive privilege is granted you to place your sign on the property. You are also permitted to list this property with all members of the Wheeling Real Estate Board." (Signed Mrs. Josephine Boring, owner). On the reverse side is a description of the property and the sale price of $20,000.00. The commissions in case of sale was 5% on the first $3,000.00, and 3% on the remainder. This writing was procured by Mrs. E. J. Wolf, representing plaintiff, at the home of Mrs. Boring, who was then about 76 years of age. It appears that plaintiff listed and advertised the property for sale, the last advertisement being made in the winter of 1925, and made other efforts to sell the property without success. About thirteen months after the date of the writing, a Mr. Ross, representing another real estate broker, the Pan Handle Realty Company, had an inquiry from Sacher and Rosenheim, who desired to purchase property on 16th street, the street on which defendant's property was located, and learning from Mrs. Boring about August 1, 1925, that her property could be purchased, obtained from her verbal authority to sell it. Negotiations were then had between Schell Amos, representing the Pan Handle, and Sacher and Rosenheim for a sale to the latter, and a survey of the property was made by engineers employed by Amos for the tentative purchasers. Mrs. Wolf having learned that the property was either sold or a sale contemplated, went to the home of Mrs. Boring on August 8th, and testifies that Mrs. Boring told her she was selling the property and had signed a contract, wdiereupon Mrs. Wolf told her that the contract with plaintiff was in force and that her agent (plaintiff) would expect its commissions. Mr. Glatz, son-in-law of Mrs. Boring, and her son, John Boring, were present, and asked to see the listing contract and went to plaintiff's office with Mrs. Wolf where it w-as shown to them. That afternoon, August 8, 1925, Mrs. Wolf sent Mrs. Boring a letter signed by Graner Realty Company in which it is stated that the writer understood that Pan Handle Realty Company had disposed of the property, and inasmuch as the contract of July 7, 1924, had not term- inated, commissions under that contract would be expected. Mrs. Boring by letter of the 10th of August 1925, notified plaintiff in keeping the contract that she desired to terminate the contract under the thirty days notice provision. Plaintiff answered this letter on. August 17th, refusing to accept the withdrawal, claiming that the property had already been sold. Later a deed from Mrs. Boring and the other owners to Edward Sacher dated September 12, 1925, and acknowledged September 21, 1925, was admitted to record on September 22, 1925. On July 30, 1926, this suit was instituted.

Plaintiff claims its commissions under the "listing" contract of July 7, 1924. Defendant admits the contract, but defends on the ground that the contract was terminated by notice under the terms thereof and was no longer binding at the time her property was sold through Amos.

Alleged errors are assigned relating to the admission and rejection of evidence, and permitting plaintiff's counsel to lead witnesses, but as none of these errors were saved in special bills of exception nor made a ground for setting aside the verdict, they cannot be considered. Stewart v. PollackForsch Company, 143 S. E. 98, handed down this day. The other errors relate to the giving and refusal of instructions, and refusal to set aside the verdict. It is necessary to detail the evidence in order to ascertain if there was error in the giving or refusal of instructions.

The question at issue was the date of the sale of the property to Sacher and Rosenheim (for although the deed was made to Sacher, he says that Rosenheim is a part owner), and whether the delivery of the deed was merely carrying out that contract of sale. When did Mrs. Boring sell the property to Sacher? When was a valid and enforceable sale made by her? If a binding sale was made before September 10th, although not formally dosed by deed, while plaintiff's contract was alive and binding, and the execution and delivery of the deed in September was to avoid liability to plaintiff, then plaintiff is entitled to recover. If not, then he is not entitled to recover. On this issue the evidence is conflicting. Mrs. Wolf says that when she learned a sale had been made through the Pan Handle Realty Company she went to Mrs. Boring's home about the 8th of August, and asked her if she was selling the property and was answered in the affirmative, and that she, defendant, had signed a contract, and that the agency through which the sale had been made was the Pan Handle Realty Company that she could not repeat the words used by Mrs. Boring, but understood that the contract of sale which Mrs. Boring had signed was with the Pan Handle Realty Company, and she presumed it must have been a sale contract, similar to that which had been given to plaintiff on July 7, 1924, thirteen months before. Mrs. Wolf did not...