Low Moor Iron Co. Of Va. v. Jackson.&dagger

• Decision Date: 12 January 1915
• Citation: 117 Va. 76,84 S.E. 100
• Court: Virginia Supreme Court
• Parties: LOW MOOR IRON CO. OF VIRGINIA. v. JACKSON.&dagger

84 S.E. 100

117 Va. 76

LOW MOOR IRON CO. OF VIRGINIA.

v.JACKSON.†

Supreme Court of Appeals of Virginia.

Jan. 12, 1915.

Error to Circuit Court, Alleghany County.

Action by P. A. Jackson against the Low Moor Iron Company of Virginia. Judgment for plaintiff, and defendant brings error. Affirmed.

After the introduction of the evidence introduced by both the plaintiff and the defendant in this cause, the defendant moved the court to give the jury the following five instructions:

(A) The court instructs the jury that they shall find a verdict for the defendant unless the plaintiff has, by a preponderance of the evidence, proven to their satisfaction:

(1) That on December 30, 1911, John H. Mitchell constituted the plaintiff his agent and authorized him to purchase for him the tract of land in the declaration mentioned at the price of $11,000 at any time within 10 days from the said date.

(2) That on the said date the defendant accepted the said proposition giving the said Mitchell the privilege of purchasing the said land at said price at any time within said period of 10 days, and directed the plaintiff, as its agent, to notify Mitchell accordingly.

(3) That the said Mitchell, at no time within said period of 10 days, made to the defendant a proposition different from that hereinbefore stated.

(4) That the said Mitchell at all times within 10 days from said date was ready and willing to unconditionally pay the said sum of $11,000 for the said property.

(B) The court further instructs the jury that, in weighing the evidence of each of the witnesses who has testified in this case, they should consider the accuracy of his recollection, the reasonableness and consistency of each part of his evidence with the residue thereof, and his interest in the result of this controversy, if he isshown by the evidence to have any interest therein, and his demeanor while testifying.

(C) The court further instructs the jury that, unless for a cause or causes based upon the evidence, they have no right to disregard the evidence of any of the witnesses who have testified in this case.

(D) The court further instructs the jury that, unless they believe from the evidence that the defendant agreed that it would first enter into a written contract with the said J. H. Mitchell with the understanding that the said contract would, afterwards, be carried into effect by deed, they shall find for the defendant.

(E) The court further instructs the jury that, unless the alleged agreement of J. H. Mitchell to purchase the said tract of land was unconditional, and the said agreement or some memorandum thereof was in writing and signed by the said J. H. Mitchell or by his duly authorized agent, the said Mitchell was not legally bound to purchase said property; and, unless they believe that he was legally bound to purchase said property, they shall find for the defendant.

But the court refused to give said instructions A, B, ¹ D, and E asked for by the defendant, and, on its own motion and over the objection of defendant, gave the following three instructions, to wit:

(1) If the jury believes from the evidence that Mitchell agreed with Jackson that he would five $11,000 for the land, and that Jackson made this offer to Mr. Means, and that Mitchell was ready, able, and willing to take the land at that price, then the jury are instructed that Jackson was thereupon entitled to commission on the sale price.

(2) If the jury believe from the evidence that Jackson never offered on behalf of Mitchell but $10,500, and that Means declined to sell at that price, and so told Jackson, then Jackson is not entitled to commissions.

(3) The burden is upon Jackson to show by a preponderance of the evidence that he made the offer of $11,000 on behalf of Mitchell, and that Mitchell was ready, able, and willing to carry the offer into a complete purchase

John T. Delaney, of Covington, for plaintiff in error.

Geo. A. Revercomb and C. B. Cushing, both of Covington, for defendant in error.

KEITH, P. This suit was brought by Jackson against the Low Moor Iron Company to recover commissions upon a sale of certain real estate owned by the defendant company.

Evidence was introduced before the jury tending to prove that the Low Moor Iron Company had for sale certain real estate in Alleghany county known as the "Rumsey" or "Mud Tunnel" lands; that in October, 1911, the company informed Jackson that if, before any one else would do so, he would get a purchaser for the lands at the price of $11,000, it would pay him a commission. Jackson introduced J. H. Mitchell to make a proposition to the company for the lands. His first offer was $10,000, which Mr. Means, the president of the company declined. Subsequently he procured from Mitchell authority to make an offer of $11,000, and on the 30th of December, in an interview with Means, the president, Jackson, made an offer of $10,500 for the property, which Means also declined, and thereupon Jackson made an offer of $11,000, which, according to Jackson's account, Means accepted and told Jackson to write at once to Mitchell, which Jackson did, as follows:

"Covington, Va. December 30, 1911.

" * * * I saw Mr. Means to-day. He wouldn't take less than $11,000.00, and said that wasn't near the worth of the property. You know what you told me to-day. Everything is clear; they are ready to make you a deed any time. I find there is 3, 016 acres in this tract. I would like to hear from you at earliest convenience."

Jackson in his statement further says that at the time he made the offer of $11,000, which was accepted by Mr. Means as president of the Low Moor Iron Company, it was also agreed that Mitchell was to have 10 days from December 30th within which to have the title to the property examined.

On January 5, 1912, S. G. Cargill, assistant treasurer of the Low Moor Iron Company, wrote to Jackson at Covington, Va., as follows:

"Referring to the matter of our 3, 217-acre tract known as the Rumsey land, beg to advise that we have sold these lands through another agent to Mr. D. N. Byer."

The testimony of Sir. Mitchell confirms that of Jackson, while the evidence of the plaintiff in error is in irreconcilable conflict with the account given by Jackson. That Mitchell was willing and able to complete the purchase is established by the evidence; nor is there any contest as to the amount of the verdict, if the plaintiff was entitled to a recovery, the position of plaintiff in error being that the defendant in error had failed to make out his case, and that the verdict should have been for the defendant.

One of the principal allegations of error is that the court refused to instruct the jury that to entitle the plaintiff to recover there must have been some agreement or memorandum thereof in writing signed by the purchaser or his duly authorized agent.

There are cases which hold that a written contract between the buyer and the seller, or at least a written offer from the buyer which the seller may turn into a...