Krehbiel v. Milford

• Decision Date: 09 June 1951
• Docket Number: No. 38331,38331
• Citation: Krehbiel v. Milford, 232 P.2d 229, 171 Kan. 302 (Kan. 1951)
• Parties: KREHBIEL v. MILFORD.
• Court: Kansas Supreme Court

Page 229

232 P.2d 229

171 Kan. 302

KREHBIEL v. MILFORD.

No. 38331.

Supreme Court of Kansas.

June 9, 1951.

Rehearing Denied July 3, 1951.

Syllabus by the Court.

The record in an action by a real estate agent to recover compensation for procuring a purchaser for land sold by the owner through another agent examined, and held, not to sustain a judgment for the plaintiff because the evidence fails to disclose he had procured a purchaser who was ready and willing to buy the land on the terms of his listing agreement and had notified the owner of that fact prior to his sale of the real estate.

E. C. Minner and Harry A. Waite, both of Dodge City, were on the briefs for appellant.

Logan N. Green, Roland H. Tate and Daniel R. Hopkins, all of Garden City, were on the briefs for appellee.

PARKER, Justice.

This was an action by a real estate agent to recover compensation from the owner for procuring a purchaser who was ready, willing, and able to purchase land in accord with the terms of an oral listing agreement. The plaintiff recovered and defendant appeals.

With issues joined by pleadings not in question this cause came on for trial by a jury which, after the trial court had denied defendant's request for an instructed verdict, returned a verdict in favor of plaintiff. Thereafter, the trial court overruled defendant's motion for a new trial based upon grounds, among others, the refusal to submit the instruction for a directed verdict as requested was erroneous and that the verdict was not dustained by sufficient evidence and was contrary to the evidence. It then rendered judgment in accord with the verdict. Thereupon defendant perfected this appeal wherein he seeks a reversal of the judgment under specifications of error charging that the trial court erred in refusing to instruct the jury to return a verdict in his favor and in denying him a new trial.

Factual features of the case not in dispute can be briefly summarized and stated thusly:

Sometime in the fore part of 1949 L. W. Milford who was a resident of Finney county and owned a section of land located in Kearny county listed such property with E. D. Krehbiel, and several other real estate dealers of the community, for sale at a price of $48,000. Krehbiel had a daughter, Mildred Gusted, who was associated with him in his business as a realtor. She contacted Mrs. E. B. Beiderwell of Garden City as a prospective purchaser on the morning of Friday, January 13, 1950. Mrs. Beiderwell indicated she was interested in purchasing the land. Later in the afternoon of the same day Mrs. Gustad called Milford and advised him she had a prospective purchaser and asked if he would be available for an appointment on Monday. Upon receipt of an affirmative answer she said 'Well, I'll see you Monday,' but made no definite appointment at that time. On the afternoon of Sunday, January 15, Mrs. Gustad, who in the meantime had had no further contact with Mrs. Beiderwell, had a second telephone conversation with Milford. At that time she advised him it was going to be necessary for her to be out of town on Monday and suggested an appointment for Tuesday. Mrs. Gustad then left Garden City for Wichita returning to Garden City about 4 o'clock on the afternoon of Monday, January 16. She immediately called Milford and was informed the land had been sold to another buyer earlier in the day. She then called Mrs. Beiderwell who advised her to the same effect.

So much for the undisputed evidence. Mrs. Gustad's testimony to the effect she notified Milford in their second telephone conversation that the people she had contacted were not fooling around but were going to buy is controverted. However, she so testified and the trial court approved the verdict. Therefore, under the established rule, See West's Kansas Digest, Appeal & Error, k1002 and 1005, a verdict on conflicting evidence will not be disturbed on appeal, that fact must be regarded as established for present purposes.

We turn now to evidence touching the status of Mrs. Beiderwell as a prospective purchaser who was ready, willing, and able to buy the land in question at the listed price. As we do so it should be noted that during the trial the parties stipulated she was able to buy. Thus we come to the only serious conflict between the parties regarding the facts disclosed by the evidence. Appellee contends the record discloses evidence establishing that he had procured a purchaser who was ready and willing to buy at the listed price and that appellant had been notified of that fact. On the other hand appellant insists there is nothing whatsoever in the evidence to sustain that contention. Let us see.

A review of the record touching matters pertinent to a decision of the wholly irreconcilable positions of the parties on the point in question reveals that Mrs. Beiderwell did not testify as a witness and that the only evidence with respect thereto is to be found in statements made by Mrs. Gustad and in what the appellee seeks to construe as admissions made by appellant.

In answer to a question respecting the nature of her first conversation with Mrs. Beiderwell, Mrs. Gustad replied: 'A. I called Mrs. Beiderwell and asked her if she was still interested in land. I had talked to her about property at different times. I had an idea that she was interested in some that was close to her property, to her land. She said 'Yes, I am, if it is close to my land.' I said 'Well, this is very close.' She said 'Where is it?' I gave her the legal description and she said 'Well, now, where is it?' I said 'I will come up to the house and bring an ownership map and I can show you better', so I went up to her house. I showed her on the map where it was located. She wanted to know the price and I told her. She said 'I know where that land is; that is a mighty good section, and I sure would like to have it.' She said 'Well, I am familiar with it but I want the doctor just to look it over.' I left my map so they could fly over and look at it. I told her 'Well, to make sure, now, that it hasn't been sold I will call Mr. Milford and find out if it is still seventy-five dollars an acre and if it is still available' and that was about the extent of the conversation with her, other than personal conversation.'

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