King v. Benson
| Citation | 56 P. 280,22 Mont. 256 |
| Parties | KING v. BENSON. |
| Decision Date | 06 March 1899 |
| Court | United States State Supreme Court of Montana |
Appeal from district court, Meagher county; F. K. Armstrong, Judge.
Action by Walter J. King against N.E. Benson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
N. B Smith, A. C. Gormley, and M. M. Lyter, for appellant.
Max Waterman and C. A. Spaulding, for respondent.
Action by plaintiff as assignee of an account for commissions for services as real-estate broker in the sale of an interest in certain mines. The complaint contains allegations of employment by defendant of S.W. Langhorne to effect the sale of a promise on the part of defendant to pay for his services, of a negotiation of a sale by S.W. Langhorne, and of an assignment of the account for the services to plaintiff. The answer denies all these allegations. At the close of plaintiff's proof the defendant moved the court to direct a nonsuit on two grounds: that the evidence failed to show that there was any note or memorandum in writing of the alleged contract of employment between defendant and S.W. Langhorne, and that the evidence failed to show any contract of employment. From a careful reading of the evidence we are of the opinion that the motion should have been sustained. No proof offered by plaintiff tends to show that defendant ever employed S.W Langhorne. It tends to show the contrary. The proof offered in support of the contract consists of a series of letters and telegrams between S.W. Langhorne, of Helena, Mont., and the defendant, who was, at the time the negotiations were opened, in Excelsior Springs, Mo. In one of his letters to S.W. Langhorne, about the time negotiations were opened, the defendant distinctly tells him that he must look for his compensation for making the sale to the parties for whom he was negotiating. Thereafter the defendant came to Helena, and the sale was completed there. Nothing was ever said between defendant and Langhorne, after the statement was made in the letter referred to, about any compensation to be paid by defendant. No matter what services were rendered to defendant by Langhorne, and accepted by defendant, no recovery can be had for them, under the proof in this record, because there was no note or memorandum of any contract for such services in writing. Civ. Code, § 2185. There was a verdict below for plaintiff. This appeal is from the...
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