Jacobs v. Shenon

• Decision Date: 01 February 1892
• Citation: 3 Idaho 274,29 P. 44
• Parties: JACOBS v. SHENON
• Court: Idaho Supreme Court

29 P. 44

3 Idaho 274

JACOBS v. SHENON

Supreme Court of Idaho

February 1, 1892

BROKERS' COMMISSIONS-ALLEGATIONS OF COMPLAINT-PROOF.-1. A broker claiming commissions upon an agreement which provides that the party of the first part offers to sell certain mining property at the price of $175,000, and to pay the parties of the second part $12,000 for services rendered in selling or placing said property, upon terms acceptable to the party of the first part, must allege in direct and positive terms that the party of the second part did render services which resulted in the sale thereof, or that he produced a party ready, willing and able to purchase said property upon the terms named, otherwise it is insufficient. The broker must follow such allegation with proof that such services were rendered by him, in order to recover.

WRITTEN CONTRACT MERGES ALL PRIOR AGREEMENTS RELATING TO THE MATTER.-2. A contract having been reduced to writing and signed by the parties, concluded all the parties thereto at the date thereof, and any contracts made between the same parties prior to that relating to the same subject matter and all conversations and agreements of whatever kind had between them prior to that date, are by law conclusively presumed to be merged in the final contract.

SAME-AGREEMENTS PRIOR TO WRITTEN CONTRACT NOT PROPER CONSIDERATIONS FOR JURY.-3. No conversations or agreements had or made prior to that time, tending to vary or dispute the provisions of the writing, are proper considerations for the jury, and could not be given in evidence.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

Judgment reversed, and a new trial granted, with costs awarded to appellant.

R. P Quarles, Texas Angel, and Smith & Smith, for Appellant.

One of two joint promises may release the obligor of a contract and, if by so doing he injures his co-obligee, his co-obligee must look to him for relief. (Jacomb v. Harwood, 2 Ves. Sr. 265; Murray v. Blatchford, 1 Wend. 583, 19 Am. Dec. 537; Napier v. McLeod, 9 Wend. 120; Decker v. Livingston, 15 Johns. 479; Kimball v. Wilson, 3 N.H. 96, 14 Am. Dec. 342; Myrick v. Dame, 9 Cush. 248.) Evidence of intention of the parties in making a written contract is inadmissible. (Harrison v. McCormick, 89 Cal. 327, 26 P. 830; Nicholson v. Tarpey, 89 Cal. 617, 23 Am. St. Rep. 469, 26 P. 1101.) The construction of the contract, it being in writing, was for the court, and to submit it to the jury was error. (Monnett v. Monnett, 46 Ohio St. 30, 17 N.E. 659; Goddard v. Foster, 17 Wall. 123; Luckhart v. Ogden, 30 Cal. 547.)

F. E. Ensign, for Respondent.

When a person, answerable in contract to two jointly, settles with one of these, so that one has no longer any interest in the matter in dispute, it is a severance of the cause of action, and the debtor is liable in an action at law to the other alone. (Boston etc. R. Co. v. Portland etc. R. Co., 119 Mass. 498, 20 Am. Rep. 338; Garrecht v. Taylor, 1 Esp. Dig. 117; Kirkman v. Newstead, 1 Esp. Dig. 117; Austin v. Walsh, 2 Mass. 401; Baker v. Jewell, 6 Mass. 460, 4 Am. Dec. 162; Holland v. Weld, 4 Me. (Greenl.) 255; New Braintree v. Southworth, 4 Gray, 304.) A release not under seal and without consideration is void. (Benjamin v. McConnell, 4 Gilm. 536, 46 Am. Dec. 474; Crawford v. Millspaugh, 13 Johns. 87; Jackson v. Stackhouse, 1 Cow. 122, 13 Am. Dec. 514.) When a contract is ambiguous, and the meaning doubtful, and requires oral evidence to explain it, the question of its meaning should be submitted to the jury. (Ganson v. Madigan, 15 Wis. 145, 82 Am. Dec. 659; Bedard v. Bonville, 57 Wis. 271, 15 N.W. 185; Philibert v. Burch, 4 Mo.App. 470; Hueske v. Broussard, 55 Tex. 201.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

The plaintiff alleges that on the seventh day of June, 1889, the defendant entered into an agreement with E. S. Chase and William Tate Taylor, by which the said defendant agreed to and with said Chase and Taylor that he would pay them the sum of $ 12,000 for services rendered by said Chase and Taylor, in selling the property known as the "Shenon" group of mines, situated in Bannock mining district, in Beaverhead county, Montana, and placing the same in a manner acceptable to the said defendant; and said agreement further provided that the said sum should be paid to the said Chase and Taylor in the following manner, to wit: That, at each payment made to said defendant by the purchaser or purchasers of said mining property, said Chase and Taylor should be paid by the defendant their pro rata share thereof, until the whole of the said sum should be paid to them. That the said mining property, in the sale and placing of which said services were rendered by the said Chase and Taylor, has been sold, and the purchase money therefor has been paid to the said defendant, and that the whole amount of the said sum of $ 12,000 has become due and payable to the said Chase and Taylor, one-half thereof to each. That however it may appear upon its face, as a matter of fact, the said agreement is and was not a joint agreement, as the services rendered as the consideration of said agreement were rendered before the date of the agreement, or its execution by defendant, by said Chase and Taylor, and were not performed jointly or in co-operation, and the amount due under said agreement to each of them, to wit, the sum of $ 6,000, was due for separate, distinct and independent services. That the said William Tate Taylor is now, and was at the commencement of this suit, a nonresident of this state, and a resident of the state of Montana, and has had, since the commencement of this action, no interest in said agreement; and that, prior to the commencement of this action, the amount due him under said contract had been paid by the said defendant. That on the first day of September, 1890, there was due to said E. S. Chase, from the said defendant, on said agreement, the sum of $ 6,000, after deducting therefrom the sum of thirty-five dollars, which sum of thirty-five dollars the plaintiff admits to have been paid by the said defendant to the said Chase, on said agreement, on the tenth day of August, 1889. That on the first day of September, 1890, the said E. S. Chase sold and assigned his interest in said agreement to the plaintiff. That no part of said $ 6,000 had been paid, except the sum of thirty-five dollars, as before stated; and there is now due thereon from the said defendant to plaintiff the sum of $ 5,963, and interest at the rate of ten per cent. Prays judgment for the above sum and interest.

To this complaint the defendant filed a demurrer alleging, among others, the following causes, to wit: 1. The complaint does not show or allege that E. S. Chase and William Tate Taylor had ever rendered any services in selling or placing the said property mentioned in the complaint, either before the date of the alleged agreement, or at any time; 2. It does not allege or show that the sale or placing of the property alleged in said complaint to have been made, was made before the date of the alleged agreement, or in consequence of any services rendered by said Chase and Taylor; 3. It does not allege or show that the property was placed or sold in a manner acceptable to the defendant; 4. It does not state whether the alleged agreement was verbal or in writing. This demurrer was filed June 16, 1891. On the same day the defendant filed his answer, and admits that, on the seventh day of June, 1889, he entered into an agreement with the said Taylor and Chase, touching the sale and placing by them of the mining property mentioned by them in said complaint; but he denies that he agreed in said agreement to pay the said Taylor and Chase the sum of $ 12,000, or any other sum, in consideration of services rendered, prior to said date, by them or either of them, in placing or selling the said property, or any part thereof. Denies that said Chase and Taylor, or either of them, had, on the said seventh day of June, 1889, sold said property, or any part thereof, in any manner. Avers that said agreement is a joint agreement. Denies that the consideration for said agreement is or was services rendered by said Taylor and Chase prior to the date of said agreement, and denies, specifically, each of the allegations of the complaint, except that he admits that said property has been sold; but he denies that said property was sold by the said Chase and Taylor, or either of them, or that they sold any part of said property, or that they, or either of them, were the procuring cause of said sale, and avers, upon information and belief, that, prior to said sale, the said Chase, in bad faith toward this defendant, used his influence trying to prevent said sale by false and slanderous statements. That at the time of the execution of said agreement it was distinctly understood and agreed that said promise to pay said Chase and Taylor the said sum of $ 12,000 was upon the condition that they, the said Chase and Taylor, should place and sell the said mining property at the price of $ 175,000, upon terms and in manner as should be acceptable to defendant. That said consideration for said promise has wholly failed. The answer contained other alleged defenses not necessary to be here stated. On July 15th, the day the verdict was returned and the judgment rendered, the plaintiff, by leave of the court, filed an amendment to his amended complaint, alleging that the plaintiff, conspiring with the said William Tate Taylor, induced the latter, in order to defraud the said Chase, to sign a release to and for the said defendant, of and from the indebtedness arising from said contract, with the intention to wrong and defraud said Chase. The demurrer to the...