Hardy v. Ward

• Decision Date: 22 November 1917
• Citation: 31 Idaho 1,168 P. 1075
• Parties: W. B. HARDY, Doing Business as the RUPERT INVESTMENT COMPANY, Respondent, v. ROBERT WARD and MARY WARD, Husband and Wife, Appellants
• Court: Idaho Supreme Court

168 P. 1075

31 Idaho 1

W. B. HARDY, Doing Business as the RUPERT INVESTMENT COMPANY, Respondent, v. ROBERT WARD and MARY WARD, Husband and Wife, Appellants

Supreme Court of Idaho

November 22, 1917

CONTRACT-PERFORMANCE OF-BROKER-COMMISSION-CONFLICTING EVIDENCE-JUDGMENT ON.

Held where there is substantial evidence to support the verdict of a jury, the same will not be disturbed on appeal.

APPEAL from the District Court of the Fourth Judicial District, for Minidoka County. Hon. James R. Bothwell, Judge.

Action to recover real estate broker's commission. Judgment for plaintiff affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

E. R Dampier, for Appellants.

It is the duty of the court to set aside the verdict where there is no evidence to sustain it, or where it is against the law as given by the court. (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Quale v. Ream, 15 Idaho 666, 99 P 707.)

W. T. Stafford, for Respondent.

A verdict on substantially conflicting testimony will not be disturbed. (Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Idaho 626, 144 P. 1114; Bower v. Moorman, 27 Idaho 162, 147 P. 496; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25.)

Where there is any substantial evidence to support the findings and judgment, they will not be disturbed upon appeal to the supreme court for insufficiency of the evidence. (Pomeroy v. Gordan, 25 Idaho 279, 137 P. 888; Dearing v. Hockersmith, 25 Idaho 140, 136 P. 994, and other Idaho cases collected and cited, Flynn's Digest, p. 53.)

BUDGE, C. J. Morgan, J., and Rice, J., concur.

OPINION

BUDGE, C. J.

Appellants and respondent entered into an agreement whereby the latter, who was a real estate broker, was to sell two tracts of land belonging to appellants, and in pursuance of such agreement respondent found purchasers who were ready and willing to buy the lands. A contract of sale was thereafter entered into and signed on August 22, 1914, whereby Hichiraw Hamaoka and Tokuichi Hondo agreed to purchase the lands of the appellants and to pay therefor the sum of $ 8,600. Fifty dollars was paid at the time of the signing of the agreement, $ 500 was to be paid on or before September 5, 1914, $ 1,450 on or before November 18, 1914, and the balance of the purchase price at different times, stipulated in the contract, with interest upon all deferred payments at six per cent per annum from the date of the agreement, payable semi-annually. The first installment of $ 500 was paid, but no further payments were made.

At the time that the sale was being negotiated appellant, Mary Ward, refused to sign the contract until respondent's commission should be fixed. Thereupon respondent agreed in writing to accept $ 300 as his commission in full for all services rendered. Respondent retained $ 25 out of the initial payment of $ 50, $ 175 out of the second payment of $ 500, and upon the refusal of appellants to make any further payments brought this action to recover $ 125, the balance alleged to be due. The cause was tried to a jury and judgment was entered upon the verdict in favor of respondent for this amount, from which judgment this appeal is prosecuted.

As error the appellants assign that the evidence is insufficient to support the verdict and judgment. It is conceded that respondent was the procuring cause in securing the contract of sale for appell...