Hopkins v. Convy, 33505.
| Decision Date | 07 April 1921 |
| Docket Number | No. 33505.,33505. |
| Citation | 182 N.W. 225,191 Iowa 402 |
| Parties | HOPKINS v. CONVY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Des Moines; Thos. L. Sellers, Judge.
Action to recover a commission for negotiating an exchange of real estate. Verdict and judgment for plaintiff. Defendant appeals. Reversed.Miller, Parker, Riley & Stewart, of Des Moines, for appellant.
Mulvaney & Mulvaney, of Des Moines, for appellee.
Plaintiff alleged in his petition that during the year 1918, and for two years prior thereto, he was engaged in the business of buying, selling, and trading real estate in the city of Des Moines, and that shortly prior to January 30, 1918, he assisted the defendant to effect an exchange of certain residence properties owned by him in said city of Des Moines to one Gibney for a half section of land in Black Hawk county, Iowa. Plaintiff does not claim that the defendant's city property was listed with him for sale, or that he was employed by express contract to represent the defendant, or that a commission was agreed upon between them in advance. In an amendment to his petition, to make the pleadings conform to the proof, he alleged that the defendant knew that he was a real estate dealer, agent, and broker, and that he knew plaintiff was claiming to represent him, and without objection permitted him to perform services for him, resulting in the exchange of properties as above stated, and asks judgment for the reasonable value of his services which he alleges to be $575. The answer of the defendant is a general denial.
The evidence shows that the defendant met plaintiff several times at the office of O. A. Luce Company, real estate dealers in Des Moines, during the year 1917. At that time defendant was negotiating a trade of a farm owned by him in Buena Vista county for the two residence properties, which he traded to Gibney. Luce represented the defendant as agent in that transaction. The defendant claims that he did not know that plaintiff was engaged in the real estate business, except possibly as an employé or associate of Luce; that during all of the negotiations resulting in the execution of a written contract between himself and Gibney on January 30, 1918, he understood that plaintiff and the Luce Real Estate Company were representing Gibney, and it did not occur to him that plaintiff was his agent. It is conceded that Luce was the agent of Gibney in this transaction. The only witnesses introduced by either party, who gave testimony as to the services rendered by plaintiff, were himself and the defendant.
[1] It is urged by counsel for appellant that the plaintiff wholly failed to establish the allegations of his petition by a preponderance of the evidence, and that at most, at the conclusion of the testimony on both sides, it was in equipoise. An instruction was asked to the effect that, if the jury found that the evidence of both plaintiff and defendant in respect to any particular issue, or as to all material issues in the case, was evenly balanced, then a verdict should be returned for the defendant. The court gave the instruction, in so far as it related to a particular issue, but omitted the portion thereof that applied the rule to all of the issues in the case. The court fully instructed the jury upon the burden of proof, and we do not think the defendant was prejudiced by the failure of the court to give the complete instruction as requested. The question as to whether the evidence was in equipoise, or whether the greater weight preponderated in favor of the plaintiff, was for the jury, and the instructions given were sufficiently definite and comprehensive to fairly submit the issue to the jury.
[2] II. After stating the issues, the court, in numbered paragraph 1 of its charge, instructed the jury that the burden of proof was on the plaintiff, and that before he could recover it was incumbent upon him to prove--
“by a preponderance of the evidence * * * that prior to February, 1918, the defendant knowingly and without objection permitted plaintiff to perform services for him in a real estate exchange substantially as set out in plaintiff's statement heretofore read to you; that said services were of some value.”
This instruction is criticized by counsel, who requested the court to instruct the jury that--
“Before you can find for the plaintiff, he must establish by preponderance of the evidence that he actually rendered services to the defendant under such circumstances that the defendant must have known, had he acted as an ordinarily reasonable man, that the plaintiff was expecting to be paid for such services.”
It has been the law in this state, since Scully v. Scully's Ex'r, 28 Iowa, 548, that--
“Ordinarily, and without more, where one person renders services for another, which are known to and accepted by him, the law implies a promise on his part to pay therefor.” Shelton v. Johnson, 40 Iowa, 84;Cowan v. Musgrave, 73 Iowa, 384, 35 N. W. 496;In re Estate of Squire, 168 Iowa, 597, 150 N. W. 706;Farmer v. Underwood, 164 Iowa, 587, 146 N. W. 18;Snyder v. Nixon, 176 N. W. 808.
[3] The court in some of its other instructions repeated substantially the language of the requested instruction, and it is argued by counsel for appellant...
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