Larson v. Thoma

• Decision Date: 02 July 1909
• Citation: 121 N.W. 1059,143 Iowa 338
• Parties: LARSON ET AL. v. THOMA.
• Court: Iowa Supreme Court

143 Iowa 338

121 N.W. 1059

LARSON ET AL.

v.THOMA.

Supreme Court of Iowa.

July 2, 1909.

Weaver, J., dissenting in part.

Appeal from District Court, Allamakee County; A. N. Hobson, Judge.

Action to recover commission for sale of real estate. There was a counterclaim for damages for wrongfully suing out of attachment. There were special findings by the jury that the attachment was not wrongfully sued out, and that plaintiffs did not sue out such attachment with the intent or purpose of harassing or coercing defendant, and there was a general verdict for the plaintiffs in the amount of their claim. From a judgment on the verdict, defendant appeals. Reversed.W. S. Hart and H. E. Taylor, for appellant.

J. E. O'Brien, Dayton & Dayton, and D. J. Murphy, for appellees.

McCLAIN, J.

1. There was evidence tending to show that plaintiffs effected a sale of defendant's land to one Conrad in accordance with the terms of a contract under which plaintiffs were to receive $160 in the event of effecting such sale, but it is contended for appellant that a verdict should have been directed for the defendant, or a new trial granted on plaintiffs' motion, because it conclusively appeared that the contract for commission on which plaintiffs sue was procured by fraudulent concealment, and also because the court erroneously withdrew from the consideration of the jury any question of fraud as to the procuring of such contract. These three assignments of error may be considered together, as they relate to the claim of the appellant that fraud in the procuring of the contract was established.

On the 15th of December, 1905, the plaintiffs, who were partners engaged in the business of selling real estate on commission, took Conrad and his wife from Waukon, to what is called the “Sandry place,” about 15 miles distant, with a view of effecting a sale thereof to said Conrad, who had already indicated to them his intention of buying the place if it suited his wife. Mrs. Conrad was not satisfied with the Sandry place, and, instead of going to Lansing, a few miles distant, for the purpose of returning home by rail, they went back with plaintiffs to Waukon, and remained over night. There is a controversy in the evidence as to what the purpose of the Conrads was in thus returning to Waukon, but as this purpose, so far as it was known to plaintiffs, was involved in the determination of the question whether any fraud was perpetrated by plaintiffs on defendant in the subsequent transaction with him; and, as the court refused to submit any question of fraud to the jury, we must give the version of the facts found in the evidence of Conrad which was most favorable to defendant, although it was contradicted in some respects by that of the plaintiffs. Conrad testified that, while they were at the Sandry place, he and his wife talked about going back to Waukon for the purpose of looking at a farm which had previously been described to them in a general way by one O'Brien as likely to suit them. O'Brien had some time before conveyed this information to Conrad in a conversation held elsewhere, and it is conceded that he had no interest in the sale of the farm thus recommended, and that such farm was the farm which defendant subsequently sold to Conrad on which sale plaintiffs are now seeking to recover a commission. It was therefore agreed between the Conrads and plaintiffs that the former would return to Waukon with the plaintiffs, nothing being said at this time about the desire of Conrad to look at the other place, and the plaintiffs urging such return in order that they might show the Conrads other farms which they had for sale nearer Waukon. During a conversation held in the evening at the hotel in Waukon where they stayed, in which plaintiffs tried to persuade the Conrads to look at other farms which plaintiffs had for sale, Conrad referred to the fact that a farm in the neighborhood had been recommended to them by O'Brien which he and his wife wanted to see. Being unable to give the name of the owner or other description of this farm which would identify it, a number of places were referred to, among them what was designated as the “Eels place,” which Conrad said was the place he had in mind, and which was thus identified as being the farm of Thoma, and the plaintiffs said that they would willingly take the Conrads out the next day, and show them that place. It was thereupon arranged between the Conrads and plaintiffs that the latter would on the next morning take the Conrads to look at the Thoma place and some other farms, and plaintiff Larson, in accordance with this arrangement, drove the Conrads to the Thoma place next morning. Up to this time the plaintiffs had not had any agency for the sale of the Thoma place, but early in the morning, before Larson started out with the Conrads, plaintiff Collins went to the Thoma place, and had an interview with the defendant, in which the latter agreed that plaintiff should have a commission of $1 per acre for the sale of defendant's farm of 160 acres at $85 per acre. Returning from the Thoma place, Collins met Larson and the Conrads driving out, and secretly conveyed to Larson the information that an agency for the sale of the Thoma place had been secured. Larson proceeded with the Conrads to the Thoma place, which was inspected by the latter, and then took them to look at another farm for which plaintiffs also had the agency, but this last place visited was unsatisfactory to the Conrads, and they declined to visit another farm, the price of which, as stated to them, they thought rendered it undesirable, and returned with Larson to the Thoma place which they then agreed to buy.

In short, the fraud, if any, on the part of plaintiffs in their dealings with defendant, consisted in securing from defendant a contract for a commission on the sale of defendant's farm, concealing from him the fact that the Conrads, to whom plaintiffs expected to effect a sale of the farm, were already on their way out to see it with the object of purchasing it should it prove satisfactory to them. Now, it cannot be contended that a real estate agent, having in tow a customer who, as he has discovered, is desirous of purchasing property of a particular kind or character, is bound before he enters into negotiations to secure the agency for property which he thinks will suit his customer to disclose to the owner of such property the probability that he will be able to effect a sale. It is a part of his business to ascertain what kind of property his customer wants and to supply him with such property, if he can, and as in cases like this, where there is no relation of agency between the real estate man and his so-called customer, and his commission is to be earned, if at all, by securing compensation from the owner of the property for effecting its sale to such customer, there can be no impropriety in his seeking to secure from owners of property which he thinks will suit his customer contracts for a commission for a sale thereof. At the time when Collins interviewed defendant and secured from him a contract, there was no relation of confidence between them. They were dealing at arm's length. It was for defendant to say whether he desired to secure the services of plaintiffs in effecting a sale of his farm at a specified price for an agreed commission, and we think that, under the facts of this case, there was no fraud on the part of plaintiffs in failing to advise defendant that they already had a customer in tow who wanted to examine defendant's place with a view of making a purchase. Had plaintiffs not secured the agency for the sale of defendant's place, they might have used legitimate arguments to dissuade the Conrads from making the purchase, they might have enlarged more fully than they did upon the advantages of other places which they had for sale, and might at least have induced the Conrads to defer concluding the purchase until plaintiffs could secure more advantageous terms from the owners of other properties which they might offer. The mere fact that plaintiffs used no persuasion to induce the Conrads to purchase defendant's place does not preclude them from having a commission for effecting its sale. Lee v. Conrad (Iowa...