Hannan v. Fisher

• Decision Date: 01 August 1890
• Citation: 46 N.W. 225,82 Mich. 208
• Court: Michigan Supreme Court
• Parties: HANNAN v. FISHER.

46 N.W. 225

82 Mich. 208

HANNAN v. FISHER.

Supreme Court of Michigan

August 1, 1890

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Corliss, Andrus & Leete, for appellant.

James H. Pound, for appellee.

MORSE J.

The plaintiff sued the defendant in an action in assumpsit upon the common counts, and recovered judgment in the circuit court for the county of Wayne. The plaintiff claimed that the defendant authorized him to sell 10 acres of land owned by defendant, situated on Woodward avenue, in the city of Detroit; that in pursuance of such authority the plaintiff procured W. K. Anderson, who accepted and stood ready to take the 10 acres of land at $17,000, the price agreed upon between plaintiff and defendant; that, after this purchaser was procured, defendant refused to convey the 10 acres, which would be a frontage of 165 feet on Woodward avenue, and would only convey 150 feet frontage for the $17,000. Defendant told plaintiff that he thought he could get the purchaser to pay this price for the 150 feet, which was a little over nine acres. Plaintiff thereupon tried to induce Anderson to take the nine acres at $17,000, but did not succeed in doing so. Mr. Fisher himself afterwards sold the nine acres to other parties for $17,000. Plaintiff claimed that he was entitled to 2 per cent. on the price above named, because, in the first place, he secured a purchaser for the 10 acres, as authorized by defendant, and the sale was only prevented by the action of defendant. The defendant contended and testified that he never employed plaintiff to sell the land for him; that Hannan first met him on the street, and asked him if he would sell some of his land on Woodward avenue. Fisher replied that he would if he could get his price for it. Hannan said, "I think I can sell a piece of it,-ten acres." About two weeks afterwards Hannan said to him, "I think I have got a customer for that." Mr. Fisher then told him that before Hannan sold any land for him it would be well to understand exactly what was going to be sold, and said to him that the piece they had spoken about, and designated as the south half of lot 5, only contained nine acres and a fraction. In the first conversation he did not authorize Hannan to sell it. At the second talk plaintiff said he did not think he could sell the 9 acres. The purchaser wanted 10 acres. They had other talks about it plaintiff wanting defendant to sell the 10 acres, and Fisher refusing to sell more than the 9 acres and fraction. Plaintiff finally asked defendant to give him an option for one week upon the 9 acres, which he did. After the week was up defendant sold to other parties for $17,000. The option was given to Claude W. Case, who was a clerk of W K. Anderson, who, plaintiff claims, was the purchaser that he procured for the 10 acres. In order for the plaintiff to maintain his case, it was not only necessary for him to establish that he was employed to sell the 10 acres at $17,000, but also that he procured a purchaser. He does not claim that he got any purchaser except Anderson, and we think that upon the testimony of Anderson a verdict should have been directed for the defendant. But the circuit court judge instructed the jury that Anderson stood ready to take the 10 acres for $17,000, and, if they found that Fisher employed Hannan to sell the 10 acres at that price, the plaintiff was entitled to recover his commission. It seems that Anderson owned land adjoining to that of defendant, and knew that defendant contemplated platting his land, and intended to run a street between 20 acres that he owned there, which would take half the highway off from the 10 acres to be sold. It also appeared that the street had already been partially laid out by defendant. Anderson testified that plaintiff came to him and offered to sell him the south half of lot 5, and asked him $17,000 for it. "I told Mr. Hannan that I thought I would accept the property at $17,000, if he could get it. I told him to get me an option on the property." Mr. Hannan went away, and came back and said that Mr. Fisher had now concluded that he would not sell but 150 feet front which would be about 9 acres. "I told him he had better get an option from Mr. Fisher on the best terms he could, and that I would consider it." The option was taken at Anderson's request, in the name of Case, which option he never accepted. On cross-examination, he testified that he never met Mr. Fisher, or came to any terms with him in reference to the property. "Question. You never accepted any proposition, nor made any proposition that was accepted on one side or the other, finally? Answer. No. Q. And this option in writing was made at...