Hambleton v. Fort

• Decision Date: 08 March 1899
• Citation: 58 Neb. 282,78 N.W. 498
• Parties: HAMBLETON v. FORT.
• Court: Nebraska Supreme Court

58 Neb. 282

78 N.W. 498

HAMBLETON

v.FORT.

Supreme Court of Nebraska.

March 8, 1899.

Syllabus by the Court.

1. Under a real-estate broker's contract to find a purchaser it is not essential, to his earning commissions, that he literally bring the vendor and vendee together, or that he even inform the vendor of the identity of the proposed purchaser. It is sufficient if, by his influence on the mind of the vendee, he be the efficient cause of the two assuming the relations of vendor and vendee.

2. Evidence set forth in the opinion held sufficient to sustain a recovery by a broker on a quantum meruit.

3. Exceptions to the exclusion of testimony are unavailing unless there be tender made of the proof which it was sought to elicit.

Error to district court, Lincoln county; Neville, Judge.

Action by Irvin A. Fort against John T. Hambleton. Judgment for plaintiff. Defendant brings error. Affirmed.French & Baldwin, for plaintiff in error.

Wilcox & Halligan, for defendant in error.

IRVINE, C.

Fort sued Hambleton to recover $125 as commissions earned as real-estate broker in procuring a purchaser for land owned by Hambleton in Lincoln county. He recovered judgment for $96, and the defendant has brought the case to this court by proceedings in error. The first question raised, and the principal one in the case, is the sufficiency of the evidence. The contract, as alleged, was to find a purchaser or sell the land, but there is no proof of authority to make a sale, and it is clear that plaintiff did not himself effect the sale; so the question is, did he perform such services, in procuring a purchaser, as entitled him to compensation? The evidence is conflicting, but taking it, as we must, in view of the verdict, in the light favorable to plaintiff, it shows the following state of facts: For some years Fort had acted as the agent of Hambleton in paying the taxes on the land, and Hambleton had frequently written to him, asking that he find some one who would buy, and communicate thereon. Fort had negotiated with several persons, and finally obtained an offer from one Dikeman for a portion of the land, but Hambleton rejected this offer. Fort undoubtedly directed Dikeman's attention to the land as open to purchase, and first interested Dikeman in the matter. He did not, however, disclose Dikeman's name or identity to Hambleton. Hambleton went to North Platte, and there met Dikeman, Fort not then intervening to bring them together; and through direct negotiations a sale was effected of a portion of the land. It seems that Hambleton had learned of Dikeman at his home, in Des Moines, through a former owner of the land, who knew that Dikeman owned the other land in the immediate vicinity, and was able to purchase. Fort's services, then, consisted only in first directing the purchaser's attention to the land, and securing his favorable interest. While the case is undoubtedly on the border line, we think this was enough to sustain the verdict. The broker, it is often said, must be the procuring...