Johnson v. Wright

• Decision Date: 07 April 1904
• Citation: 99 N.W. 103,124 Iowa 61
• Parties: JOHNSON BROS., Appellant, v. JOHN I. WRIGHT
• Court: Iowa Supreme Court

99 N.W. 103

124 Iowa 61

JOHNSON BROS., Appellant, v. JOHN I. WRIGHT

Supreme Court of Iowa, Des Moines

April 7, 1904

Appeal from Kossuth District Court.-- HON. W. B. QUARTON, Judge.

ACTION for commission for finding purchaser of land. Judgment as prayed, from which the defendant appeals.

Reversed.

Andrew Miller, for appellant.

Patterson & Gordon and Sullivan & McMahon, for appellees.

OPINION

LADD J.

In the fall of 1900 the defendant listed with plaintiffs a half section of land, situated in Kossuth county, at $ 40 per acre net to him. All above that amount was to be commission for their services in finding a purchaser. The purchaser was to assume a mortgage of $ 2,400 on each quarter section, and $ 5,000 was to be paid in cash, or else $ 1,000 in cash and $ 4,000 in thirty days. There was some controversy as to terms which the verdict resolved in favor of plaintiffs. On the 28th of March, 1901, they procured from one E. G. Seymour a contract to buy the land, and notified defendant by telegram the next morning, and were advised that he had sold to another. He had listed the land with one Dressman, who had secured a written agreement to buy one quarter section from Willie and Martin Kaduse on the 24th day of March, 1901, and defendant had signed this on the 29th of March, about four o'clock in the afternoon. Whether this was before he received plaintiff's telegram is in dispute, defendant declaring it to have been before, and the members of the plaintiff firm testifying that defendant had subsequently admitted that it was afterwards.

The court instructed the jury that, if the contract with Seymour was made before that with the Kaduses was signed by the defendant, plaintiffs were entitled to recover. We think this was error, and that the jury should have been told that unless defendant received the telegram advising him of the proposed sale to Seymour before he signed the contract of sale to the Kaduses, plaintiffs were not entitled to their commission. The agency was to find a purchaser on certain terms, and, in order to earn the commission, it was incumbent upon plaintiffs to furnish a person ready, able, and willing to buy on the terms fixed. To accomplish this, where no sale is actually made, either a valid obligation to buy must be procured and tendered to the principal, or the vendor and proposed purchaser must be brought together, so that the vendor may secure such a contract if he wished to do so. It is not enough that a parol offer to buy be made to the agent. The proposition should be to the principal, to the end that the statute of frauds may be obviated by reducing the agreement to writing. Mattingly v Pennie, 105 Cal. 514 (39 P. 200, 45 Am. St. Rep. 87); Gunn v. Bank of California, 99 Cal. 349 (33 P. 1105); Sibbald v. Iron Co., 83 N.Y. 378 (38 Am. Rep. 441); Hayden v. Grillo, 35 Mo.App. 647; Yeager v. Kelsey, 46 Minn. 402 (49 N.W. 199).

These rules are often stated in different language, but the decisions affirming them in principle seem to be uniform. The agent only finds the purchaser by being the means of furnishing him to the principal as a buyer to whom the sale might have been made but for the principal's perversity and the cases cited by appellees go no further than to hold that such perversity, i. e., refusal to sell as proposed, will not defeat the right to recover the agent's commission as stipulated. Cassady v. Seeley, 69 Iowa 509, 29 N.W. 432; Ford v. Easley, 88 Iowa 603, 55 N.W. 336; Bird v. Phillips, 115 Iowa 703, 87 N.W. 414, merely holds that a written agreement with the proposed purchaser is not essential. A purchaser ready, able, and willing to buy on the seller's terms was proffered, and this was held sufficient, in the absence of a written agreement. Surely a purchaser has not been found unless the agent has been the means of procuring a person who has either bound himself in writing to buy, and advised his principal of the fact, or who has indicated his readiness to consummate the purchase to the only person who can sell. In the instant case, Seymour had obligated himself in writing, and was such a purchaser as defendant might require, but he was not found to the defendant until the latter was advised of his readiness to take the land. Until a buyer who has obligated himself to purchase, or is ready to do so, has been proffered in some way by the agent to his principal, the contract to find a purchaser has not been fulfilled. These principles are well expressed in Hayden v. Grillo, supra: "This contract on the part of a broker is complete when he delivers or tenders to the owner a valid written contract, containing the terms of the sale agreed on, signed by a party able to comply therewith, or to answer in damages if he should fail to perform. This is all the agent can...