Kane v. Sherman

• Decision Date: 11 February 1911
• Citation: 130 N.W. 222,21 N.D. 249
• Parties: KANE v. SHERMAN.
• Court: North Dakota Supreme Court

21 N.D. 249

130 N.W. 222

KANE

v.SHERMAN.

Supreme Court of North Dakota.

Feb. 11, 1911.

Syllabus by the Court.

Before a broker can recover for services as such, he must plead and sustain a contract of employment, express or implied.

Evidence in this case does not show such a contract, and the trial court properly directed the jury to find for the defendant.

Appeal from District Court, Cass County; Pollock, Judge.

Action by Arthur N. Kane against Sidney F. Sherman. Judgment for defendant, and plaintiff appeals. Affirmed.Turner & Murphy and E. H. Wright, for appellant. Robert M. Pollock and Pollock & Pollock, for respondent.

BURKE, J.

During the times hereinafter mentioned plaintiff was a real estate dealer and broker living at St. Paul, Minn., and the defendant was engaged in a similar business at Tower City, N. D.

For convenience we will designate them “K.” and “S.,” respectively. Their transactions began November 19, 1906, when S. wrote a letter to K., probably in answer to an advertisement that K. was then running in one of the Twin City papers offering to trade city property for North Dakota farm lands. This letter probably also contained Exhibit B, hereinafter referred to. This letter reads as follows: “Have you any St. Paul or Minneapolis property to exchange for improved farm lands in North Dakota. I have several hundred acres of good land in this vicinity, accumulated during several years' land business, and am now contemplating moving to Minneapolis in a different line of business. I could handle such property from there better than my farm lands, and if a good trade could be made, would consider it. Something worth $50,000 to $75,000 would be as large a deal as I would care to handle. Would expect to put in the lands at their actual value. If you have anything in this line I will be pleased to hear from you.”

November 20, 1906, K. replied: “Replying to your favor of the 19th inst. will say that I have a client here in St. Paul who owns a good flat property in Minneapolis near the University, with a rental of $7,500 a year, that he will exchange for good cheap lands either improved or wild, if a reasonable exchange can be made. If you will send me a list of your lands, giving prices, incumbrances, etc., I will try to submit a proposition to you that will be satisfactory.”

November 26, 1906, S. replied inclosing a list of his lands, and saying: “If the property which you mention is good, and the owner of the same will consider a trade, I will be glad to have you give me a full description of the property.” K. did not reply and on December 24, 1906, S. wrote to him again, saying: “On November 21st, I sent you a list of the lands which I wished to trade for city property. Please advise if same has been received, and if so, what, the prospects are for doing business with you.”

December 26, 1906, K. replied: “* * * I have been offered a large flat property in Minneapolis, as per inclosed statement. * * * If you care to consider a deal will be pleased to take it up with the other party.”

On January 3, 1907, S. replied, inquiring about the flats, and adding: “When you have taken the matter up with your parties let me know,” etc. Then followed several letters consisting of inquiries and answers as to the two properties and the terms upon which a trade might be made, and about January 26, 1907, S. went to St. Paul to close a trade. It was then discovered that K.'s party did not own the property in Minneapolis, and S. returned to North Dakota. The following day K. wrote to him: “I am sorry there was a snag in the Minneapolis property. * * * Do you intend to go ahead and make a trade if you can find something satisfactory, if so I will be glad to see what I can find, and the next time you are in the cities you can look them over. * * * I looked around St. Paul yesterday and found a business property, the Court Block and got into touch with the real owner. * * *”

January 28, 1907, S. answered: “Am open for any reasonable proposition. * * * Give me a full description of the Court Block.” This was followed by a lengthy correspondence concerning said property and the terms of trade. This correspondence, consisting of some 30 letters, is too long to reproduce here, especially as all of the letters were dated after November, 1906, and could not contain a contract made in that month; their only use being to show whether the parties themselves understood that a contract had in fact been made in November. We have carefully examined this correspondence and find that it contains no mention of such a contract, excepting in the extracts that we have set forth in this opinion.

April 17, 1907, S. received from K. this telegram: “Come down to-night. Party returns with you. Deal depends on lands.” S. replied by wire: “As deal depends on lands, no need for me to go down now. Send your party out I will show lands, if satisfactory will return with him.” The owner of the Court Block sent his brother to inspect the lands which led to S. going to. St. Paul about May 6, 1907, where he met K. and the owner of the Court Block, a Mr. Davidson and inspected the Court Block, but made no agreement relative to a trade. S. went to his hotel that evening and wrote two letters, one to K. and one to Mr. Davidson. To K. he wrote: “Since leaving your office this afternoon I have come to the conclusion that it is best to drop the Court Block trade entirely.” To Mr. Davidson he wrote, saying that he had written to K., and adding:...