Grasinger v. Lucas
| Decision Date | 12 October 1909 |
| Citation | 24 S.D. 42,123 N.W. 77 |
| Parties | A. M. GRASINGER, Plaintiff and respondent, v. C. F. LUCAS et al., Defendants and appellants. |
| Court | South Dakota Supreme Court |
Appeal from the Circuit Court, Spink County, SD
Hon. Chas. S. Whiting, Judge
Affirmed
Bruell & Morris
Attorneys for appellants.
Sterling & Morris
Attorneys for respondent.
Opinion filed Oct. 12, 1909
This case is before us on appeal by the defendants from a judgment in favor of the plaintiff and order denying a new trial. It is alleged, in substance, in the complaint that the plaintiff at the special instance and request of the defendants was the agent of said defendants for the sale of certain stock of goods, wares, and merchandise owned by them, and that the plaintiff entered into and fully consummated, a deal whereby said goods, wares, and merchandise were exchanged for 320 acres of real property situated in Faulk county; that, by the terms of the contract of agency, the plaintiff was to receive a commission of 5 per cent. of the value of said stock of goods and that the same was of the value of $5,00o, and plaintiff had not been paid any part of his said commission, except the amount of $15, and demands judgment for the sum of $200. The defendant Jennie Lucas in her separate answer admits that she was the owner of the stock of goods and merchandise, and that she is the owner of the half section of land received in exchange for the same, but denies that the plaintiff was employed by her in any capacity whatsoever in consummating the transaction whereby the said defendant became the owner of said land, denies that she is indebted to the plaintiff in any sum whatever, and denies that she ever employed the plaintiff to act for her in the consummation of any sale of the goods or merchandise, and denies that said plaintiff was ever employed by any one for this defendant to act for her in the consummation of said trade. The defendant C. F. Lucas in his separate answer admits that Jennie Lucas was the owner of the stock of goods and merchandise described, denies that he is in any manner indebted to the plaintiff for the sum of $200 or any other sum, and denies that he ever made any contract with the said plaintiff as alleged in his complaint.
It is disclosed by the evidence that Jennie Lucas was the owner of the stock of goods exchanged for the half section of land, and that the defendant C. F. Lucas was her husband and generally managed the business in connection with the store and stock of goods; that the said C. F. Lucas employed the plaintiff to negotiate the sale of said stock of goods, and agreed to pay him therefor a commission of 5 per cent. on the value of said stock of goods; that the plaintiff found a party willing to exchange the half section of land in Faulk county for the stock of goods; that the value of the stock of goods transferred, including fixtures, was $3,500; that he had received $15 on account of commissions, leaving a balance due him of $160 as found by the jury. It was further disclosed by the evidence that the plaintiff had no conversation, agreement, or contract with the defendant Jennie Lucas in regard to the transaction, but that all of his negotiations were had with C. F. Lucas, the husband. But the plaintiff introduced in evidence the bill of sale of the stock of goods made by C. F. Lucas and Jennie Lucas, parties of the first part, and H. Ralph Taylor, party of the second part, transferring the said stock of goods to the said Taylor, which was executed under the hand and seal of Jennie Lucas and C. F. Lucas, and it will be observed by the admissions of Jennie Lucas that she was the owner of the stock of goods, and that by means of the exchange she became the owner of the half section of land. It was further disclosed by the evidence of the plaintiff on his cross-examination that at the time he made the negotiation for the sale of the defendants' stock of goods to Taylor he was connected with the Jim River Land Company at Ashton at a salary of $50 per month, and that one Clark, who conducted the negotiations on the part of Taylor, was a member of the firm; that Mr. Clark showed the Taylor land to Mr. Lucas and closed the deal between the Lucases and Taylor; that the deal worked between the plaintiff and Clark--that is, Clark and the Jim River Land Company worked on one side for Mr. Taylor, and the plaintiff represented the Lucases. He further stated that, while he was in the employ of the Jim River Land Company, he was also permitted to make trades on his own account when he could do so; that he received nothing from the Jim River Land Company or Mr. Taylor on account of the deal, and had no knowledge as to what Mr. Clark received from Taylor as commission from him. At the conclusion of the plaintiff's evidence a motion was made in behalf of Jennie Lucas for a verdict in her favor oh the ground that there was no evidence connecting her with the transaction, and that there was no testimony showing that the plaintiff was in any manner employed by her or for her, and for the further reason that the alleged claim of agency on the part of the plaintiff, so far as the defendant Jennie Lucas is concerned, was an act of bad faith on the part of the plaintiff, the undisputed evidence showing that he was in the employment of one S. L. Clark, who was acting as the agent of H. R. Taylor in the purchase of the stock of goods in question. This motion was denied and an exception taken.
It is contended by the appellant: (1) That, as no evidence was offered connecting the defendant Jennie Lucas with the transaction, the case should have been dismissed as against her, and the court erred in refusing to direct a verdict in her favor. (2) That, inasmuch as the undisputed evidence of the plaintiff shows he was acting in a dual capacity in representing both parties to the transaction without their knowledge or consent, the agreement between him and Lucas for the payment of commission was void, and the plaintiff could not recover, and therefore a verdict in favor of both of the defendants should have been directed. (3) That the court erred in allowing the plaintiff to answer the questions set forth in the second assignment of errors under errors of law. That the court committed error in instructing the jury as follows: "If you should find from the evidence that regardless of his contract with the land company that he occupied a...
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