Jefferson v. Burhans

• Decision Date: 04 April 1898
• Docket Number: 1,004.
• Parties: JEFFERSON v. BURHANS.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 949

JEFFERSON v. BURHANS.

No. 1,004.

United States Court of Appeals, Eighth Circuit.

April 4, 1898

This suit was brought by Ira W. Burhans, the defendant in error against Rufus C. Jefferson, the plaintiff in error, to recover the sum of $16,545, together with a large amount of interest thereon, which was alleged to be due from the defendant to the plaintiff on account of services rendered in perfecting the title to, and in selling, certain real property which had been purchased by the defendant. The complaint which was filed in the circuit court alleged, in substance, that in September, 1889, the plaintiff below was a dealer in real estate at the city of Superior, county of Douglas, state of Wisconsin; that the defendant was at the same time a man of large means, residing at St. Paul, in the state of Minnesota; that on the 21st day of September, 1889 the plaintiff proposed to the defendant that if the latter would advance $15,000 in cash for the title to certain property in the complaint described, and pay to the plaintiff 30 per cent. of the proceeds of the sale thereof, as each lot or tract was sold, and give to the plaintiff the entire control of said property, that the plaintiff would, on his part, cause the title to said property to be vested in the defendant, and would remove certain liens and incumbrances therefrom, so that the property would be marketable, and make sales thereof at the earliest time practicable, and pay over the proceeds of all the sales to the defendant; that the defendant accepted said proposition, and advanced said sum of $15,000, whereupon the title to the property was obtained and conveyed to the defendant, and that the plaintiff thereafter procured the release of a large number of claims and liens against said property, and caused an abstract of title to said property to be made out, and advanced and paid out of his own funds, in carrying out his part of the contract, the sum of $2,400; that he thereupon proceeded to sell and dispose of said property in accordance with his undertaking so to do; that, for the property so sold, the defendant received in the aggregate the sum of $55,150, whereby he became indebted to the plaintiff in the sum of $16,545, being 30 per cent. of the proceeds of the sale. The answer which was filed by the defendant below to the aforesaid complaint contained, in substance, the following allegations: First. That, under the agreement between the plaintiff and the defendant which was referred to in the complaint, the plaintiff was to receive 30 per cent. of the net profits of the transaction therein set forth, after the defendant below had been reimbursed the sum of $15,000 expended by him in purchasing the property, and all other expenses and disbursements for taxes, etc., together with interest thereon at the rate of 8 per cent. per annum from the date of such expenditures. Second. That one James Kasson was jointly interested with the plaintiff and the defendant in the purchase of the property in question, and that said Kasson was a necessary party to the suit. Third. That the amount due to the plaintiff on account of the transaction set forth in his petition was not the sum of $16,545, as alleged, or any sum whatever, other than a sum not exceeding $8,000; that is to say, 30 per cent. of the net profits realized from that portion of the property purchased that had been sold. The answer further alleged, by way of a separate defense, that the parties plaintiff and defendant together with said James Kasson, had been jointly interested in several other real-estate speculations, all of which were particularly described in the answer; that in each and all of said transactions, together with the one described in the plaintiff's complaint, the plaintiff and the defendant and said James Kasson had been mutually interested as partners. In view of this fact, the answer contained a prayer that said partnership might be wound up; that the plaintiff's suit might be consolidated with another suit which had been brought by the defendant and said James Kasson against the plaintiff to obtain a liquidation of the partnership affairs, and an equitable distribution of the partnership assets. The plaintiff filed a reply denying the new matter contained in the answer. The trial below was to a jury, and resulted in a verdict and judgment in favor of the plaintiff, for the sum of $23,564.02, including interest. To reverse said judgment, the defendant below sued out the present writ of error.

W. P Warner (Owen Morris, Harris Richardson, and C. G. Lawrence, on brief), for plaintiff in error.

John B. Sanborn and George P. Knowles (E. P. Sanborn, on brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

THAYER Circuit Judge, after stating the case as above, .

The record in this case does not contain the court's charge to the jury, nor all of the evidence. The only questions, therefore, which are presented for our consideration, are those relating to the admissibility of certain evidence, and these will be considered in their order.

It is urged at considerable length by counsel for the plaintiff in error that the trial court erred in refusing to permit his client to answer the following question, 'Do you know what the usual commission for real-estate agents who handle and sell property is?' and in refusing to allow counsel to show the usual commissions charged for the sale of real property at the city of Superior, Wis., and elsewhere. Concerning this exception, it is to be observed that the suit was founded upon an express contract, whereby, as the plaintiff below claimed, the defendant had agreed to pay him 30 per cent. of the proceeds received from the sale of certain real property, in consideration of certain services to be rendered by the plaintiff, which consisted, not only in negotiating sales of the property in question, but in removing clouds, liens, and incumbrances therefrom, so as to render the property marketable. The offer of proof which was made was not an offer to show that at the city of Superior at the time of the transaction in question, it was customary for real-estate agents to charge a certain commission for such services as the plaintiff had agreed to perform and had in fact rendered; but the offer was, on the contrary, to show the customary charge for selling property. Even if we were prepared to concede that, in a suit upon an express contract to pay a given compensation for certain services, it is competent for a defendant to show that the compensation alleged to have been promised for the services in question was in excess of the usual charge, for the purpose of creating a probability or a presumption that no such rate of compensation was in fact promised, nevertheless that concession would not establish the admissibility of such evidence as was offered in the case at bar. The...