Kepner v. Ford
| Decision Date | 20 February 1907 |
| Citation | 111 N.W. 619,16 N.D. 50 |
| Parties | M. F. KEPNER v. A. J. FORD |
| Court | North Dakota Supreme Court |
Appeal from District Court, Foster county; Burke, J.
Action by M. F. Kepner against A. J. Ford. Judgment for plaintiff and defendant appeals.
Affirmed.
R. P Allison and F. Baldwin, for appellant.
The agreement was an entirety and the whole land or none must be taken. Calmer v. Calmer et al., 106 N.W. 684; Wegner v. Lubenow, 95 N.W. 442.
Husband and wife must sign conveyance. Helgeby v. Dammen, 13 N.D. 167, 100 N.W. 245; Teske v. Dittberner, 98 N.W 57; Keeline v. Clark et al., 106 N.W. 257.
Executory contract for sale of homestead not signed by wife is void and no basis for specific performance and damages for breach. Clark v. Koenig, 54 N.W. 842; Meek v Lange, 91 N.W. 695; Teske v. Dittberner, 98 N.W. 57.
Maddux & Rinker, for respondents.
Broker's contract with purchaser is admissible to show terms of sale. MacLaughlin v. Wheeler, 47 N.W. 816; Lawson, et al v. Thompson, 37 P. 732.
Failure of wife to join in contract with broker to sell homestead no defense to claim for commission. Hamline et al. v. Schulte, 27 N.W. 301; Love v. Miller, 53 Ind. 294; Vinton v. Baldwin, 88 Ind. 104; Hurd v. Neilson, 69 N.W. 867; Felts v. Butcher, 61 N.W. 991.
Real estate broker not responsible for his principal's title. Kyle v. Rippey, 20 Ore. 447; Christianson v. Wooley, 41 Mo.App. 53; Barber v. Hildebrand, 42 Neb. 400.
Defective title will not defeat broker's claim for commissions. Roberts v. Kimmons, 65 Miss. 332; Middleton v. Findla, 25 Cal. 76; Hamline v. Schulte, 34 Minn. 534, 27 N.W. 301; See 43 L. R. A. 593; Glentworth v. Luther, 21 Barb. 145; Canker v. Apple, 15 Col. 141; Jarvis v. Schrefer, 105 N.Y. 289; Barthell v. Peter, 88 Wis. 316.
Contract with broker to sell in specified time cannot be revoked so as to defeat his commission. Canfield v. Orange, 13 N.D. 622, 102 N.W. 313; Glover v. Henderson, 120 Mo. 367; Ehrlick v. Insurance Co., 88 Mo. 249; Kirk v. Hartman, 63 Pa. 97; Durkee v. Gunn, 41 Kan. 496; Vincent v. Woodland Oil Co., 165 Pa. 402; Stringfellow v. Powers, 4 Tex.App. 199.
This action was commenced in the district court of Foster county to recover the sum of $ 2,000 and interest, being the agreed compensation which plaintiff was to receive under a written contract with defendant for finding a purchaser for certain real property owned by defendant. The contract was not artistically drawn, but clearly discloses the intention of the parties as follows: The property to be sold was described as the E 1/2, section 5, and S 1/2, section 4, township 148, range 67, Eddy county. Terms of sale were to be $ 10,000 net to defendant, one-half of it, or more, in cash, the balance to suit buyer at 7 per cent interest; plaintiff to have all he could get above that price. The contract, by its terms, was made irrevocable for a period of six months from its date, which was March 3, 1904. The action was tried before a jury, and a verdict returned for plaintiff for the amount sued for. A motion for a new trial was made and denied, and judgment rendered in plaintiff's favor, from which defendant appeals to this court.
A statement of the case was duly settled in the district court, containing a specification of the errors complained of. The making of the contract and his ownership of the land was admitted by defendant, and it was conceded that plaintiff in August, 1904, found purchasers for the property who were ready, able, and willing to purchase the same for $ 12,000 cash; and the sole question of fact in dispute was as to whether or not the contract was revoked by mutual consent of the parties shortly after its date. By consent of counsel the jury was asked to make a special finding upon this question, and they found in plaintiff's favor, which finding is not challenged by appellant.
Appellant alleges numerous errors upon which he relies for a reversal, and which we will dispose of in the order mentioned in his brief.
First. It is asserted that the court erred in overruling defendant's objection to the reception in evidence of plaintiff's exhibit A, being the contract above mentioned, upon which plaintiff bases his cause of action. The objection was as follows: This objection was clearly frivolous. While, as we above stated, the contract was poorly worded, still the intention of the parties is clear, and such intention must be given effect. The instrument was evidently a printed blank in use by plaintiff for listing property with him for sale, and it appears to be divided into several parts or subdivisions. The first portion of it was evidently intended to be merely a memorandum of the terms, the blanks in which were to be filled in by plaintiff. It is as follows: Following the above is a subdivision under the head "Title and Description," in which numerous questions and answers pertaining to the title, location, etc., are set forth. Then follows a subdivision containing questions and answers under the headings "Description of Surface," and "Description of Improvements," after which follows a subdivision, headed "Contract," and this is signed by the defendant. It is apparent, from an inspection of the whole document, that the defendant authorized the plaintiff to find a purchaser for the whole property, and that he agreed that plaintiff should have for his remuneration all he could sell it for in excess of $ 10,000. The first ground of the objection, which is in effect that the instrument is a unilateral contract, and is wholly without merit. Such a contract is clearly unobjectionable. It was not necessary that the parties should have reduced this contract to writing, as such a contract may rest in parol ( McLaughlin v. Wheeler, 47 N.W. 816, 1 S.D. 497), and it is idle to talk about first reforming it before giving effect to the intention of the parties.
Appellant's second assignment of error is predicated upon the court's ruling in receiving in evidence plaintiff's Exhibit C, which is a mere memorandum agreement between the plaintiff, signing himself as agent for the defendant, and Maurice Deneen and W. H. Deneen, showing that the two last named persons agreed to purchase the defendant's said property at the sum of $ 12,000 cash; the defendant to give warranty deed and furnish abstract showing no incumbrance. This is dated August 6, 1904. The ground of defendant's objection is that plaintiff had no authority to enter into such agreement, and hence that the same is not binding upon defendant. This objection is clearly untenable. Whether or not plaintiff could enter into a contract with the Deneens which would be binding upon the defendant is not material. Conceding that he could not, which no doubt is true ( Brandrup v. Britten, 11 N.D. 376, 92 N.W. 453), still we think this exhibit was admissible as some evidence at least of the fact that the Deneens were willing to purchase the property, and also for the purpose of showing the terms upon which they were willing to purchase ( McLaughlin v. Wheeler, 47 N.W. 816, 1 S.D. 497; Lawson et al. v. Thompson, 37 P. 732, 10 Utah 462). It was incumbent upon plaintiff to furnish proof of such facts. The Deneens afterwards testified to their willingness and ability to purchase the property upon the terms stated, and such fact was not disputed in any way by defendant, and hence such ruling, if error, was entirely harmless. There is nothing in the opinion in Brandrup v. Britten, 11 N.D. 376, 92 N.W. 453, relied upon by appellant, holding contrary to the views above expressed.
Appellant's third assignment of error relates to the reception in evidence of plaintiff's Exhibit B, and what we said as to appellant's first assignment of error applies to this.
The fourth error complained of consists in the overruling of the defendant's objection to the question asked the...
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