Langford v. Issenhuth
| Citation | 134 N.W. 889,28 S.D. 451 |
| Parties | LANGFORD v. ISSENHUTH. |
| Decision Date | 29 February 1912 |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Spink County; Alva E. Taylor, Judge.
Action by George W. Langford against John Issenhuth. Judgment for plaintiff, and defendant appeals. Affirmed.
William Issenhuth, for appellant.
Roy T Bull, for respondent.
Appeal from the circuit court of Spink county. Action for commissions. Jury trial. Verdict for plaintiff upon which judgment was entered. Defendant appeals from the judgment and from an order overruling his motion for a new trial. The complaint alleges that plaintiff is a real estate broker engaged in the business of selling and exchanging lands and stocks, with his principal place of business at Aberdeen that about the 17th of June, 1909, defendant listed with him for sale or trade certain personal and real property at Northville, Iowa; that defendant agreed in case plaintiff would find a purchaser for said property at its estimated value, or at any price satisfactory to defendant, that defendant would pay plaintiff for his services an amount equal to 2 per cent. of the selling price of said property That thereafter, about the 25th of June, plaintiff placed defendant in communication with Berkner Bros. of Sleepy Eye, Minn., as prospective buyers, ready, willing, and able to pay for all of said property, and that on or about the 5th day of July, 1909, defendant and said Berkner Bros. did make and consummate a deal for the sale of said property for the sum of $17,600.
Defendant's answer is, first, a general denial; second, that any transactions had between defendant and Berkner Bros. are not yet closed, and if plaintiff was instrumental in bringing defendant in communication with Berkner Bros. he was acting as the agent for Berkner Bros. and received his commission for such services from them; third, that, if plaintiff did act as agent for defendant, he was unfaithful to his trust in that, without the knowledge or consent of defendant, he bargained for a commission from Berkner Bros., by reason of which defendant was not liable for any alleged services, but defendant denies that any were rendered. Appellant presents 58 assignments of error, and alleges that the evidence is insufficient to support the verdict for 15 specific reasons, and also assigns 4 particulars wherein the verdict is alleged to be contrary to law and evidence. Much to our relief and satisfaction, however, we find this great number of assignments grouped and discussed in appellant's brief under certain propositions to be considered upon this appeal. At the close of plaintiff's case, defendant moved the court to instruct the jury to return a verdict for defendant on the grounds: (1) That the evidence does not show that plaintiff was the procuring cause of the transfer of defendant's property; (2) the evidence discloses that plaintiff was not acting in good faith toward defendant as his broker and agent, in that he was acting for Berkner Bros. in the same capacity as to defendant, and the testimony does not disclose that defendant was aware or had been informed of such fact; (3) the evidence fails to show that Berkner Bros. had any knowledge that plaintiff was to receive any commission from defendant. This motion was renewed at the close of all the evidence and the ruling denying it was excepted to and is assigned as error upon this appeal. It therefore becomes necessary briefly to review the evidence. Plaintiff testified that defendant came to his office on the 17th of June, 1909, and desired to list property he had at Northville either for sale or exchange, but it was then with reference to trading for land; estimated the stock at about $12,000, the building at $3,000, and the fixtures $1,000; that defendant, when asked what he would be willing to give as commission, said, "I suppose you will get a commission from the other side," and the witness answered, "I expect to," and they then agreed to a commission of 2 per cent. upon all his stuff, including building and fixtures. Plaintiff then offered in evidence a memorandum, marked "Exhibit K," a listing card, as follows:
Will invoice at 1st cost with 2 per cent. for freight. 2 per cent. com.
Plaintiff testified: Plaintiff then offered in evidence Exhibit A "as a corroboration, not as a contract-a memorandum made at the time, because there is a form of general denial in the answer which puts in issue the fact whether this was listed or not-to show this as a matter of corroboration and identification." The exhibit was received in evidence over defendant's objection that it was incompetent, immaterial, and irrelevant for any purpose. The witness further testified: "I met one of the firm of Berkner Bros. of Sleepy Eye, Minn., or rather he came into my office a few days after this talk, about the 25th of June, and I spoke to him concerning this Issenhuth stock of goods and he said that they had a section of land in North Dakota they wanted to trade for that stock of goods and urged me to bring the matter about"-that Berkner saw the listing card of defendant's property with note of commission on it, and said he did not care; he would allow $1 an acre commission on the land. Plaintiff then wrote defendant a letter which is as follows:
Plaintiff further testified, in substance, that he went to Northville the next Sunday and saw defendant on the street right after dinner; talked to him about going up to see the land and he said he could go out on Sunday and only miss a day and get back Monday night. Some weeks later had a conversation with him about the terms of the deal that he made. First learned that the deal had been closed when Ed. Berkner called at his office, perhaps a week after he had written the letter. After he learned this from Berkner, wrote defendant a letter, Exhibit C (which was received in evidence, and is a demand for the commission alleged to be due). Plaintiff then offered in evidence Exhibits D, E, F, G, and H, all of which were objected to as incompetent, immaterial, and irrelevant, which objections were overruled. These exhibits are letters relative to the payment of commissions and are wholly immaterial, but we think nothing contained in any of them could be injurious to appellant and they need no further consideration.
Plaintiff thereupon called defendant, John Issenhuth, for "cross-examination under the statute" (chapter 72, Laws 1909), who testified that he was not acquainted with Berkner Bros. on the 17th day of June, 1909, nor at the time he received plaintiff's letter advising him of the prospective deal; that about the 27th or 28th of June he went to Richland county, N. D., to see the land of Berkner Bros referred to, being induced to do so by plaintiff's letter; that he entered into a contract with Berkner Bros. for the exchange of his store, lot, and stock of goods, for the Richland county land; that pursuant to said contract he received a deed from Berkner Bros. for the land, and deeded his lot and store building and gave a bill of sale of his stock of goods at Northville to Berkner Bros.; that the store building, lot, and stock of goods were turned in on the trade at the estimated value in the contract of $17,700; that no mention was made of Berkner Bros. when he was in Langford's office on June 17th. The defendant then called plaintiff, George W. Langford, as a witness "for cross-examination under chapter 72 of Laws of 1909," who testified that on June 24, 1909, he had a conversation with Edward Berkner of the firm of Berkner Bros.; that this was the first time he knew of Berkner Bros.; or that they had land in Richland county, N. D.; that Edward Berkner at that time listed with him 640 acres of land for sale or exchange as stated in the memorandum marked "Exhibit I," made at the time. The witness was then asked to state what arrangement or understanding, if any, he had with Berkner Bros. with reference to a commission on the sale of the land, which was objected to by plaintiff as immaterial, irrelevant, and not tending to prove any issue, which objection was sustained and exception taken. Defendant, Issenhuth, called as a witness, testified in his own behalf that he was at plaintiff's office at Aberdeen on the 17th of June...
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