Harbolt v. Hensen

• Decision Date: 31 January 1927
• Docket Number: 6023.
• Citation: 253 P. 257,78 Mont. 228
• Parties: HARBOLT v. HENSEN.
• Court: Montana Supreme Court

253 P. 257

78 Mont. 228

HARBOLT v. HENSEN.

No. 6023.

Supreme Court of Montana

January 31, 1927

Appeal from District Court, Blaine County; John J. Greene, Presiding Judge.

Action by Ira S. Harbolt against William R. Hensen. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 244 P. 488.

D. L Blackstone, of Chinook, and Hurd, Rhoades, Hall & McCabe, of Great Falls, for appellant.

W. B Sands, of Chinook, for respondent.

MATTHEWS J.

Action by Ira S. Harbolt against William R. Hensen on a contract for the recovery of a real estate broker's commission. From a judgment in favor of plaintiff, defendant has appealed.

The complaint alleged that, "by an instrument in writing" defendant employed plaintiff to find a purchaser or "trader" for his ranch and agreed to pay a commission of 5 per cent. on the first $100,000 and 1 1/2 per cent. on any excess of that amount "of the selling or trading price"; that plaintiff negotiated a deal whereby defendant received and accepted other property for his ranch, and that the "trading price" fixed was $118,000; that the commission amounted to $5,370, of which $1,200 was paid. He prayed judgment for the balance.

The defendant made the written contract a part of his answer, and alleged that the commission was to be figured on the basis "of the value of any money or property which the first party should receive upon a sale or trade"; that the value of the property received on the trade was $30,000, the commission $1,500, of which $1,200 had been paid. He offered to confess judgment for the sum of $300 and interest.

The contract was written on stationery bearing the legend: "Real Estate. Insurance. Ira S. Harbolt, Chinook, Montana. Farm Loans." It gives to the plaintiff the "right or option to sell or trade" defendant's ranch, embracing 9,200 acres, at $15 per acre. The only clause important here reads:

"It is further understood and agreed that, if the party of the second part gets a trade for the party of the first part which he agrees to accept, the party of the first part agrees to pay a commission of 5 per cent. on the first $100,000 and 1 1/2 per cent. on all over $100,000, valuing the said ranch at $15 per acre."

No reply was interposed. The case was tried to the court without a jury. At the outset the defendant moved the court to order judgment for the plaintiff for $300, on the ground that the affirmative allegations of the answer were admitted. The motion was denied, whereupon plaintiff testified that the contract set out in the answer was the one mentioned in the complaint, and that he procured a deal for defendant which was accepted. On cross-examination he identified a contract, signed by defendant and one Annie S. Lanier, by the terms of which defendant gave his ranch "subject to an incumbrance of $45,150," and $12,000 in cash for an apartment house in Kansas City, Mo., on which there was an incumbrance amounting to $90,000. Plaintiff then rested.

Over the objection that the testimony was immaterial, the defendant was permitted to show the value of the equity in the Kansas City property; the court, however, making it clear that whether or not the testimony would be considered depended upon the construction to be placed on the brokerage contract. Defendant was also permitted to testify that, at the time of the trade, his land was not worth to exceed $5 per acre, and that at that time no value was placed on either piece of property. He testified that, while the deal was closed in 1923, he had no conversation with the plaintiff concerning the commission from the time the commission contract was signed up to April, 1925, when he attempted to secure a settlement. On rebuttal, the plaintiff testified that at Kansas City, before the trade was made, defendant made some objection to the amount of commission to be paid, and that he then agreed to waive commission on the excess over $118,000, and explained the manner in which that figure was agreed upon.

The court's findings are as follows:

"The court finds that all the allegations of plaintiff's complaint and the facts admitted in the answer of the defendant are true. The court further finds that at the time of the execution of the contract, set forth as Exhibit A in defendant's answer, it was mutually understood and agreed between the plaintiff and defendant that the plaintiff should receive as commission for securing a trade for the ranch properties of the defendant, which was agreeable and accepted by the defendant, that the defendant would pay the plaintiff, as a commission, 5 per cent. on the first $100,000 and 1 1/2 per cent. on all over $100,000 of the value of defendant's ranch which in and by said contract, they mutually agreed and fixed at the value of $15 per acre."

"Conclusions of law: The court concludes from the above findings that the plaintiff is entitled to judgment against the defendant in the sum prayed for in his complaint."

Judgment was entered accordingly for the sum of $4,070, with interest and costs. From this judgment defendant has appealed; he specifies error upon each of the findings of fact, upon the conclusion of law and upon the entry of judgment, which specifications are argued jointly under the following heads:

1. It is first argued that the findings quoted are inconsistent, in that they fix two conflicting methods of determining the basis for computing the commission; that under the allegations of the complaint, referring to the "trading price...