Harris v. Van Vranken

• Decision Date: 19 June 1915
• Citation: 155 N.W. 65,32 N.D. 238
• Court: North Dakota Supreme Court

155 N.W. 65

32 N.D. 238

ELIZA W. HARRIS and John P. Jackson, Partners, Doing Business as Harvey Harris & Company, v. PETER J. VAN VRANKEN

Supreme Court of North Dakota

June 19, 1915

Opinion on rehearing filed November 30, 1915.

From a judgment of the District Court of Burleigh County, Nuessle J., defendant appeals.

Affirmed.

Hanley & Sullivan, and Miller & Zuger, for appellant.

"Verbal" offers to agent are not sufficient; they must be made to principal. Johnson Bros. v. Wright, 124 Iowa 61, 99 N.W. 103.

Where compensation is not fixed by contract, recovery must be on basis of quantum meruit. Boysen v. Robertson, 70 Ark. 56, 68 S.W. 243; Ford v. Brown, 120 Cal. 551 52 P. 817; Kennedy v. Merickel, 8 Cal.App. 378, 97 P. 82; Turnley v. Michael, 4 Tex.App. Civ. Cas. (Willson) 363, 15 S.W. 912; Chezum v. Kreigbaum, 4 Wash. 680, 30 P. 1098, 32 P. 109; Matheney v. Godin, 130 Ga. 713, 61 S.E. 703; Allen v. Clopton Realty Co. Tex. Civ. App. , 135 S.W. 242.

A real estate broker to sell land for a net price is not entitled, in the absence of a contract therefor, to the excess over such price, as he may obtain for the land. Wilson v. Mason, 158 Ill. 304, 42 N.E. 134; Hammond v. Crawford, 14 C. C. A. 109, 35 U. S. App. 1, 66 F. 425; Keys v. Johnson, 68 Pa. 42; Olsen v. Jodon, 38 Minn. 468, 38 N.W. 485; Richards v. Jackson, 31 Md. 250, 1 Am. Rep. 49; Dorrington v. Powell, 52 Neb. 440, 72 N.W. 587; Felts v. Butcher, 93 Iowa 414, 61 N.W. 991; Ormsby v. Graham, 123 Iowa 202, 98 N.W. 724; Brandrup v. Britten, 11 N.D. 376, 92 N.W. 453.

Where a parol offer is relied on by plaintiffs, they must allege such parol offer to have been made by the purchaser to the defendant. Such offer to the broker is not sufficient. Johnson Bros. v. Wright, 124 Iowa 61, 99 N.W. 103, and cases cited; Ford v. Brown, 120 Cal. 551, 52 P. 817; Manton v. Cabot, 4 Hun, 73; Owen v. Ramsey, 23 Ind.App. 285, 55 N.E. 247.

Where an express contract of employment is relied upon, it must be proved as alleged. Castner v. Richardson, 18 Colo. 496, 33 P. 163; Kane v. Sherman, 21 N.D. 249, 130 N.W. 222; Patterson v. Torrey, 18 Cal.App. 346, 123 P. 224.

There was no agreement for compensation, and recovery can only be had upon quantum meruit. Turnley v. Michael, 4 Tex.App. Civ. Cas. (Willson) 363, 15 S.W. 912; Scott v. Hartley, 126 Ind. 239, 25 N.E. 826; Chezum v. Kreigbaum, 4 Wash. 680, 30 P. 1098, 32 P. 109; Boysen v. Robertson, 70 Ark. 56, 68 S.W. 243; Matheney v. Godin, 130 Ga. 713, 61 S.E. 703; Allen v. Clopton Realty Co. Tex. Civ. App. , 135 S.W. 242; Ford v. Brown, 120 Cal. 551, 52 P. 817; Manton v. Cabot, 4 Hun, 73; Owen v. Ramsey, 23 Ind.App. 285, 55 N.E. 247.

A broker to procure purchasers for land, to be entitled to any compensation, must prove that he found and produced to defendant a person ready, willing, and able to buy and pay, and who offered to buy at the price and on the terms alleged. Johnson Bros. v. Wright, 124 Iowa 61, 99 N.W. 103; Flynn v. Jordal, 124 Iowa 457, 100 N.W. 326, and cases cited; Gunn v. Bank of California, 99 Cal. 349, 33 P. 1105; Mattingly v. Pennie, 105 Cal. 514, 45 Am. St. Rep. 87, 39 P. 200; McGavock v. Woodlief, 20 How. 221, 15 L. ed. 884; O'Brien v. Gilliland, 4 Tex. Civ. App. 42, 23 S.W. 244; Cullen v. Bell, 43 Minn. 226, 45 N.W. 428; Dent v. Powell, 93 Iowa 711, 61 N.W. 1043; Neiderlander v. Starr, 50 Kan. 766, 32 P. 359; Carter v. Owens, 58 Fla. 204, 25 L.R.A.(N.S.) 736, 50 So. 641; Watters v. Dancey, 23 S.D. 481, 139 Am. St. Rep. 1071, 122 N.W. 430; Cone v. Keil, 18 Cal.App. 675, 124 P. 548; Grindstaff v. Merchants' Invest. & T. Co. 61 Ore. 310, 122 P. 46.

The conditions of the contract were not fulfilled in any respect. Halsell v. Renfrow, 14 Okla. 674, 78 P. 118, 2 Ann. Cas. 286.

A broker may not speculate with his principal's property, without the knowledge and consent of the principal, but must account for all profits. Borst v. Lynch, 133 Iowa 567, 110 N.W. 1031; Young v. Hughes, 32 N.J.Eq. 372; Pratt v. Patterson, 112 Pa. 475, 3 A. 858; Martin v. Bliss, 57 Hun, 157, 10 N.Y.S. 886; Carter v. Owens, 58 Fla. 204, 25 L.R.A.(N.S.) 736, 50 So. 641.

"Man cannot serve two masters." O'Meara v. Lawrence, 159 Iowa 448, 141 N.W. 312; Henderson v. Vincent, 84 Ala. 99; Ford v. Brown, 120 Cal. 551, 52 P. 817; Morey v. Laird, 108 Iowa 670, 77 N.W. 835; Carpenter v. Fisher, 175 Mass. 9, 55 N.E. 479; Phinney v. Hall, 101 Mich. 451, 59 N.W. 814; Ballinger v. Wilson, N.J.Eq. , 53 A. 488; Martin v. Bliss, 57 Hun, 157, 10 N.Y.S. 886.

Courts cannot supply omissions in contract. Johnson v. Plotner, 15 S.D. 158, 86 N.W. 926; Schmeling v. Kriesel, 45 Wis. 325; Potts v. Whitehead, 20 N.J.Eq. 55; Colson v. Thompson, 2 Wheat. 336, 4 L. ed. 253.

In order to obtain specific performance of a contract, its terms should be so precise as that neither party can reasonably misunderstand them. Bailey v. Ogden, 3 Johns. 399, 3 Am. Dec. 509; Meyer Land Co. v. Pecor, 18 S.D. 466, 101 N.W. 39; Chambers v. Roseland, 21 S.D. 298, 112 N.W. 148.

Perfect title means a title free from reasonable doubt. Woodward v. McCollum, 16 N.D. 43, 111 N.W. 623.

Newton, Dullam, & Young, for respondents.

The findings of the trial court have the same weight as the verdict of a jury and are presumed to be correct, and unless they are against the clear preponderance of the evidence, they must stand. Ruettell v. Greenwich Ins. Co. 16 N.D. 546, 113 N.W. 1029; James River Nat. Bank v. Weber, 19 N.D. 702, 124 N.W. 952.

A plaintiff must allege and prove all facts necessary to entitle him to recover, upon the theory outlined by his pleading. 19 Cyc. 274; Hayes v. McAra, 166 Mich. 198, 35 L.R.A.(N.S.) 117, 131 N.W. 535; Hamlin v. Schulte, 34 Minn. 534, 27 N.W. 301; Grosse v. Cooley, 43 Minn. 188, 45 N.W. 15; McDonald v. Smith, 99 Minn. 42, 108 N.W. 291; Fulton v. Cretian, 17 N.D. 335, 117 N.W. 344.

Courts, in construing contracts, should regard that construction placed upon it by the parties themselves. Moore v. Beiseker, 77 C. C. A. 545, 147 F. 367; Willard v. Monarch Elevator Co. 10 N.D. 400, 87 N.W. 996; Canfield v. Orange, 13 N.D. 622, 102 N.W. 313.

Where a broker for the sale of lands finds a buyer who is willing and ready to buy and pay on the terms required by the owner of the land, or principal, and communicates the facts to another agent of the same principal, he commits no fraud by not disclosing the amount of excess he is to receive, over the net price. Deming Invest. Co. v. Meyer, 19 Okla. 100, 91 P. 846; Townsend v. Kennedy, 6 S.D. 47, 60 N.W. 164; Reed, Stat. Fr. § 341; Allgood v. Fahrney, 164 Iowa 540, 146 N.W. 42.

It is not a question of the ability of the prospective purchaser to procure the money to pay for the land, but the test is, his ability and circumstances to respond in damages for a breach of his contract to purchase. Butler v. Baker, 17 R. I. 582, 33 Am. St. Rep. 897, 23 A. 1019; McCabe v. Jones, 141 Wis. 540, 124 N.W. 486; Stoutenburgh v. Evans, 142 Iowa 239, 120 N.W. 59, 19 Ann. Cas. 1048; Hart v. Hoffman, 44 How. Pr. 168; Hackley v. Draper, 60 N.Y. 88; White v. Glasby, 101 Mo. 162, 14 S.W. 180; Grosse v. Cooley, 43 Minn. 188, 45 N.W. 15; McDonald v. Smith, 99 Minn. 42, 108 N.W. 291; Hamlin v. Schulte, 34 Minn. 534, 27 N.W. 301.

Concealment of the identity of the purchaser from his principal will not preclude the owner from recovering his commissions on a sale of land, where there does not appear that there was anything in the facts and circumstances to render that fact important. Veasey v. Carson, 177 Mass. 117, 53 L.R.A. 241, 58 N.E. 177; Feist v. Jerolamon, 81 N.J.L. 437, 75 A. 751.

The seller's title to the land is not free from reasonable doubt. The title is not marketable. The defendant himself recognized that his title was not right. The vendor gave for his reason for withdrawing the land from sale, that he no longer needed the money to be paid down. Hubner v. Reickhoff, 103 Iowa 368, 64 Am. St. Rep. 191, 72 N.W. 540; 4 Words & Phrases, p. 3380.

He cannot, after litigation is started, assign and rely upon another and different reason. Donley v. Porter, 119 Iowa 542, 93 N.W. 574; Weaver v. Snow, 60 Ill.App. 624; Smith v. Keeler, 151 Ill. 518, 38 N.E. 250; Blood v. Shannon, 29 Cal. 393.

OPINION

GOSS, J.

This action is by real estate brokers to recover damages for defendant's breach of contract in refusing to convey to a third person a section of land belonging to defendant, and for which plaintiffs had, at his solicitation, secured said third person as a purchaser, and who had agreed with defendant to buy. The plaintiffs' damages arise from defendant preventing their securing commissions from the purchaser by breaching the contract. A general demurrer was interposed to the complaint, and the order overruling it is the first error assigned. The material parts of the complaint will be set forth at length.

It is alleged that plaintiffs are real estate brokers engaged in buying and selling real property on commission for others "to the knowledge of the defendant." That defendant was the owner of said section of land. "That on and prior to the said 21st day of September, 1906, the defendant had employed the plaintiffs to sell such real property, and had directed and authorized them to offer for sale and to sell the same for, and at the price of, $ 15 per acre net to him, and that on or about said date they offered the same to one Julius C. Kunze, then of the town of Lewis, and state of Iowa, at and for the price of $ 17 per acre; and that the said Julius C. Kunze then and there offered to buy the same at said price, upon the terms and conditions of a payment of $ 1,780, down, of which $ 1,280 was the plaintiffs' profit and commissions and as to the net price to the defendant and terms of payment thereof, as follows, viz.: $...