Jackson v. Brower.

• Decision Date: 30 July 1917
• Docket Number: No. 1975.,1975.
• Citation: 167 P. 6,22 N.M. 615
• Parties: JACKSONv.BROWER.
• Court: New Mexico Supreme Court

22 N.M. 615

167 P. 6

JACKSON

v.BROWER.

No. 1975.

Supreme Court of New Mexico.

July 30, 1917.

Syllabus by the Court.

A real estate agent is the procuring cause of a sale or trade of real estate placed in his hands for sale or trade, when the sale is traced to his introduction of the purchaser to the owner or principal; and the same rule applies where the agent introduces his principal to the agent of the owner of the real estate, with whom the trade is made, and through whose efforts it is consummated.

Courts are not bound to give instructions which, even if correct, are merely cumulative, and state in another form a proposition of law already given to the jury.

In an action for broker's commission, an alleged abandonment of the broker's employment to sell is a matter of defense, which plaintiff is not bound to negative.

Requested instructions are properly refused, where they are not warranted by the evidence.

That the principal is ignorant of the efforts of his broker to procure a customer does not affect the broker's right to a commission.

The general rule is that an agent in whom is reposed trust and confidence, or who is required to exercise discretion or judgment, cannot intrust the performance of his duty to another. This general rule, however, does not prohibit a broker from employing others to perform service involving no skill, discretion, or exercise of judgment, a service peculiarly clerical or ministerial.

Additional Syllabus by Editorial Staff.

In an action for a commission for effecting an exchange of lands, where the broker testified that he placed a letter in a stamped envelope, addressed to defendant at his home post office, and deposited it in the post office, a copy thereof was admissible.

Appeal from District Court, Chaves County; McClure, Judge.

Action by E. C. Jackson against B. M. Brower. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

Courts are not bound to give instructions which, even if correct, are merely cumulative, and state in another form a proposition of law already given to the jury.

H. M. Dow, of Roswell, for appellant.

Geo. S. Downer, of Albuquerque, for appellee.

ROBERTS, J.

Appellee sued appellant for a commission for effecting the exchange of a 160-acre tract of land belonging to the appellant near Greenfield, N. M., for certain land in Texas. Appellee was a real estate broker engaged in business at Lake Arthur, N. M. The jury returned a verdict for appellee in the sum of $450. Motion for a new trial was filed and overruled, and judgment was entered upon the verdict, from which this appeal is prosecuted.

The original complaint consisted of two causes of action, stated separately; the first count being dismissed upon the trial. The theory of the second count was that appellee, at the request of appellant, had found him a purchaser for the lands traded, and that the money demanded was a reasonable compensation for the services. Appellant first argues that because appellee, at the time the property was first listed for sale, was a member of the firm of Holden & Jackson, which partnership was subsequently dissolved, that the contract of employment terminated. It may be true that the original listing with Holden & Jackson did terminate, but as appellee thereafter continued with the knowledge, consent, and approval of appellant to endeavor to find a purchaser for the land, and appellant accepted such services, the question of the original listing of the land for sale or trade with Holden & Jackson becomes immaterial. The second count of the complaint relied upon an implied contract for a reasonable commission established by usage and custom, and not upon any certain or definite contract to pay a commission. The record discloses that practically the only point seriously contested was as to whether plaintiff was the procuring cause of the trade, and upon this issue the case was tried.

The next point urged is that the court committed error in not sustaining appellant's motion for a directed verdict at the close of plaintiff's case in chief, and also a like motion renewed at the close of all the evidence. Disposition of this point requires a review of the evidence. Jackson by correspondence and other methods from time to time endeavored to secure a purchaser or some one willing to trade for appellant's land. People came from time to time to look at appellant's real estate but for divers reasons the deal was not consummated. Finally appellee, by correspondence with a real estate agent in Canyon City, Tex., succeeded in interesting a man named Bowen in appellant's farm. Bowen, at the suggestion of McClure, the Canyon City agent, came to Dexter, N. M., and looked over the farm belonging to appellant. In Dexter they drew a contract by which on stated terms, it was agreed that the trade would be made. Appellant had never seen Bowen's farm, and the contract provided that he should have the right to inspect Bowen's premises and five days' time within which to exercise the right to trade or reject the proposed trade. Jackson told appellant that, when he went to Canyon City, if he did not like the proposed trade, McClure would show him other farms and probably would be able to show him something that would be satisfactory. Appellee wired McClure that appellant was going to Canyon City, and also wrote him a letter in which he requested McClure, in the event the proposed trade was not consummated, to show appellant other lands listed with him. Further, at the time of the conversation relative to the proposed trip to Canyon City appellee informed appellant that, in the event he traded with McClure for other lands, he would expect to receive the usual commission, to which appellant made no reply. Appellant went to Canyon City and called upon McClure. McClure showed him the lands owned by Bowen and, as these did not prove satisfactory to appellant, he exercised his option under the contract and refused to trade. McClure then took appellant to see various other tracts of land, with the result that a trade was fully consummated with a man by the name of Trigg for certain land in Texas. While there were other minor facts, it is upon the above facts that appellee was or was not entitled to a commission, and the determination of the question depends upon whether the above facts show that the efforts of the appellee were the procuring cause of the trade.

[1] The law is well settled that the agent is the procuring cause when the sale is traced to his introduction of the purchaser to the owner or principal. See cases cited in the note to the case of Hoadley v. Savings Bank of Danbury, 44 L. R. A. 321 Tested by this rule, we believe the above facts show that appellee was the procuring cause of the trade in question, for he introduced his principal to the agent of the owner of the lands in Texas with whom the trade was made. We can see no reason for a distinction between the introduction of the principal to the owner or to the agent of the owner. Here McClure was a broker employed by Trigg and many other people to sell and trade lands for them. Jackson introduced appellant to McClure, and it was by virtue of this introduction, and the efforts of Jackson, that the trade was made. The fact that Jackson was not present and had nothing to do with the trade, further than bringing the parties together, is of no moment. For the reasons stated, the court properly denied the motion for an instructed verdict, and submitted the issue to the jury.

[7] Appellant...