Hopkins v. Settles

• Decision Date: 18 May 1915
• Docket Number: Case Number: 3852
• Citation: 149 P. 890,46 Okla. 801,1915 OK 329
• Parties: HOPKINS v. SETTLES.
• Court: Oklahoma Supreme Court

1915 OK 329

149 P. 890

46 Okla. 801

HOPKINS v. SETTLES.

Case Number: 3852

Supreme Court of Oklahoma

Decided: May 18, 1915

Syllabus

¶0 1. BROKERS--Commission--Right--Contract. Questions arising out of a claim by a real estate broker for commissions or compensation generally depend upon the contract or understanding between him and the owner, under which the broker acts. The owner has the right to stipulate that he will not pay, or be in any way obligated to pay, for services in relation to the sale of his land, except in the event such sale is fully and finally consummated.

2. BROKERS--Commission--Right--Performance of Contract. Where the owner of a farm makes a net price to a real estate broker, which he is willing to take for his land, but refuses to be bound for any commission, or to be obligated in any way, except for any sum the broker may obtain in excess of the net price, and then only in the event the sale goes through and is finally consummated, the price paid, and the title passed, such broker is not entitled to recover compensation from the owner by merely finding a purchaser ready, willing and able to buy, and procuring from him a written agreement to take the land, where such purchaser fails to live up to his agreement, or to take and pay for the land.

3. TRIAL--Failure to Admonish Jury--Waiver of Objection. Where after a civil cause has been submitted to it, the jury separates, and the individuals go to their homes for dinner, and mingle on the way with other persons, without having been admonished by the court, as required by section 5006, Rev. Laws 1910, "not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial," and such fact is known to one of the parties, when it occurs, but the court's attention is not called to the matter, and the jury reassembles and considers its verdict in the afternoon, separates for supper, then reassembles, and at an evening session returns into court, in the presence of such party, its verdict, without objection upon his part, or notice to the court of the irregularity, and where no wrongdoing or other irregularity is claimed, such party will be deemed to have waived the irregularity. He has no right to remain silent, in possession of knowledge of the facts, and speculate upon the chances of a favorable verdict, and after he is disappointed be heard to complain.

Error from District Court, Kingfisher County; James B. Cullison, Judge.

Action by H. E. Hopkins against Alvin E. Settles. Judgment for defendant, and plaintiff brings error. Affirmed.

D. K. Cunningham, for plaintiff in error.

F. L. Boynton, for defendant in error.

BREWER, C.

¶1 Plaintiff in error, Hopkins, a real estate agent, brought this suit in the court below to recover from defendant.F. L. Boynton, for defendant in error. Settles, the sum of $ 500, alleged to be due as commission or compensation for his services in connection with the sale of defendant's half section of land and certain rights in an Indian lease, together with 80 acres of growing corn. At a trial of the case the jury returned a verdict for defendant, and plaintiff brings this proceeding in error.

¶2 Whatever conversation or understanding had between these parties relative to the sale of the farm was oral. It seems to be plaintiff's contention that he was employed by defendant to find a purchaser for the land; that he was to be paid as compensation or commission for his services for bringing the parties together and consummating a valid agreement of sale all over and above the sum of $ 16,500; that he could get a purchaser to agree to pay for the property; that he did find a purchaser who entered into a valid written contract with defendant, in which it was agreed that he was to pay $ 17,000 for the property, $ 1,000 of said sum to be paid as earnest money, $ 1,000 more in 20 days, another $ 1,000 by the 1st of September, and $ 7,000 on the 1st of October, at which time a mortgage was to be executed by the purchaser to defendant for the remainder of the purchase price; and that, since he brought the parties together in an enforceable contract for the sale of the land, he was entitled to the $ 500 embraced within the terms of said contract.

¶3 The contention of defendant is that he merely made to plaintiff a price upon his land that would be satisfactory to him; that he did not employ plaintiff to find a purchaser, and did not agree to pay or become liable in any way to pay any commission, brokerage, or compensation in the matter; that he had told plaintiff, if he brought about a sale and he got $ 16,500 for his property, plaintiff could have as his own any additional sum he might get out of the purchaser; that, while the additional sum of $ 500 was added to the agreed purchase price in the contract, yet the agreement was that this sum would merely be turned over to plaintiff in case the sale was completed and went through; that the sale did not go through; that none of the deferred payments were made; that the purchaser became discouraged, and would not carry out his contract to buy the land, and did not do so.

¶4 Some attempt is made to show that the purchaser went to the bank at the time one of the later payments was to be made and asked if the deeds had been deposited, and was told that they had not. Evidence both for and against the idea that defendant breached his contract to convey is presented; but from a careful reading of the evidence there is nothing to the contention. It is clearly manifest that the purchaser had abandoned all intention of taking and paying for the farm, and that defendant was not only willing, but would have been very glad, had he taken the land.

1. The first proposition presented for reversal is based on the claim that the verdict is not sufficiently supported by the evidence. We will examine this point first. As to some phases of the matter as between plaintiff and defendant there is little conflict in the evidence. As to other phases there is much conflict; and, when the record is carefully studied, it gets down to the point as to the agreement between the parties relative to when there would be any obligation upon defendant's part to pay the $ 500. In other words, was it the agreement that plaintiff's money would be earned when he brought the parties together in a contract of sale and incorporated his fee in the amount named, or was he entitled to the fee only when the sale went through, that is, when defendant had parted with his land and received satisfactory consideration in money and notes for it? On this point the evidence is in conflict. Plaintiff, testifying in his own behalf and at length as to just what he did in bringing the parties together and getting them to sign the contract, made, as relating to the payment of his fee, the following statement:

"It was also agreed between Settles, the defendant, and me, that as soon as that $ 1,000 was paid to Settles by Van Meter, the first payment on the land, that then I should get my $ 500."

¶5 Defendant, testifying in his own behalf, was asked:

"Did you agree with Mr. Hopkins that you would pay him a commission of $ 500 for getting a signature to this contract, regardless of whether the deed and mortgages were exchanged or not? A. No, sir; I never agreed to pay Hopkins a cent in my life for nothing, only this $ 500 that he sold the place for; that he told me he had sold it for over and above my price, and I told him that I would turn it over to him when Van Meter paid it to me. Q. Do you mean when he paid the first $ 1,000? A. No, sir; when Van Meter paid me for the place, I was to turn over the difference to Hopkins."

¶6 Settles...