Griffith v. Woolworth

• Decision Date: 18 February 1890
• Citation: 44 N.W. 1137,28 Neb. 715
• Parties: GRIFFITH v. WOOLWORTH.
• Court: Nebraska Supreme Court

28 Neb. 715

44 N.W. 1137

GRIFFITH

v.WOOLWORTH.

Supreme Court of Nebraska.

Feb. 18, 1890.

Syllabus by the Court.

1. Where the answer is a general denial, the issue presented by the pleadings is the truth of the allegations of the petition. Under such an issue, affirmative proof in favor of the defendant cannot be received, and an instruction submitting such proof to the consideration of the jury is erroneous.

2. Where a land owner employs an agent to procure a purchaser for his real estate upon certain terms and conditions, the contract of employment need not be in writing.

3. Upon the facts proved, held, that the plaintiff had performed the contract on his part, and was entitled to recover.

Error to district court, Lancaster county; FIELD, Judge.

Chas. O. Whedon, for plaintiff in error.

Harwood, Ames & Kelly, for defendant in error.

MAXWELL, J.

This is an action to recover commissions for procuring a purchaser for the real estate of the defendant. It is alleged in the petition that “on or about the month of February or March, 1887, the defendant employed the plaintiff to find a purchaser for, and to sell for the defendant, the east 1/2 of the N. W. 1/4 of sec. 35, town 11, range 6 east, in Lancaster county, at a price and upon terms stated and fixed by defendant, and agreed to pay the plaintiff for his services, and as his compensation for finding such purchaser and making said sale, the sum of $600. About the 22d of April, 1887, this plaintiff found a purchaser, and sold to him, for defendant, the said premises at the price and upon the terms stated and fixed by the defendant, and thereupon the defendant became indebted to the plaintiff in the said sum of $600 for his services in and about finding such purchaser, and making said sale; and there is now due to the plaintiff from the defendant for such services, and as his compensation for his services, the sum of $600, with interest thereon from the 23d of April, 1887.” To this petition the defendant answered as follows: “Comes now the above-named defendant, and, for answer to the plaintiff's petition herein, denies each and every allegation therein contained. (2) And, for a further and second defense, said defendant alleges that the pretended contract alleged by the plaintiff to have been made was not made, executed, or delivered in writing, nor any memorandum thereof was ever made or signed by this defendant, nor yet by any one for him, at any time by this defendant thereunto, in writing or otherwise, authorized by this defendant.” The plaintiff demurred to the second count of the answer, but the demurrer was overruled, and a reply was then filed. The overruling of the demurrer is now assigned for error.

The demurrer should have been sustained. The allegations of the petition are that “the defendant employed the plaintiff to find a purchaser” for the real estate described in the petition upon certain terms and conditions, and that he found such purchaser, etc. Such a contract need not be in writing. On the trial of the cause, the jury returned a verdict for the defendant; and, a motion for a new trial having been overruled, judgment was entered on the verdict, and the action dismissed.

The testimony tends to show that one Van Horn was the agent of the defendant, and that the defendant owned a section of land in Lancaster county; that Van Horn requested the plaintiff to find a purchaser for the land; that the plaintiff found a purchaser for a quarter section thereof, and Van Horn, for the defendant, paid the plaintiff $200 for selling that quarter. Van Horn then requested the plaintiff to find a purchaser for the other three quarter sections, for a stipulated price, upon certain terms, and promised him $200 as commission for each of said quarter sections, if sold.

The following letter was introduced in evidence: “Monroeville, Ohio, Feb'y 27, 1887. Mr. W. C. Griffith--Dear Sir: Yours of the 24th received. We would prefer that the notes should run the full time. I will be at Lincoln the last of this week or first of next and will bring the deed. The notes and mortgage can be made there, if you conclude to have them made. As to selling the S. 1/2 S. E. 1/4 for $40.00 per acre, I don't think we would sell at those figures. We will close out the section at $50.00 per acre on same terms as given on S. W. quarter. I consider the south 1/2 of the S. E. 1/4 the best 80 acres in the section, and worth the most money. If you can close out the whole section at the price named, we will give you $300.00 in addition to the amount agreed upon for selling the quarter you have sold. You can sell in 1/4 sections; but, for the S. E. 1/4, we should want $60 per acre, if sold separate. Yours, truly, W. H. VAN HORN.” The testimony also tends to show that the plaintiff did find a purchaser for the land in question, for the price, and upon the terms and conditions, mentioned. He...