Lowenstein v. Holmes
| Decision Date | 20 May 1913 |
| Docket Number | Case Number: 2607 |
| Parties | LOWENSTEIN v. HOLMES. |
| Court | Oklahoma Supreme Court |
¶0 1. BROKERS--Action for Compensation--Variance. Where, in an action, plaintiff alleges that it "being then and there understood that the said plaintiff should receive as his commission the usual and customary (and reasonable) commission paid the real estate agents of the city of Oklahoma City, Oklahoma, at said time," and the proof shows that the defendant in parol employed the plaintiff as such agent without agreeing as to the amount or terms of the compensation, it being implied, as a matter of law, that the plaintiff should receive the customary or reasonable price therefor, held to be an immaterial variance.
2. CONTRACTS--Action on Contract-- Variance. A variance in the description of a contract which must be construed the same, whether or not the variance existed, not changing its nature, will not be regarded.
3. TRIAL.-- Instructions -- Request -- Instructions Already Given Where the instructions given by the court fairly and reasonably cover the law under the issues as framed, and the refused instructions in so far as they correctly state the law applicable to such issues are covered by the instructions given, held not error.
4. BROKERS--Compensation--Default of Lessee Procured. Where a broker is employed to procure a purchaser or lessee for property, and presents to his principal a lessee, it is for the principal then to decide whether the person presented is acceptable, and if, without fraud, concealment, or other improper practice on the part of the broker, the principal accepts the person presented, and enters into an enforceable contract with him, the broker is entitled to compensation for his services, although it subsequently turns out that the lessee is not able to comply with his lease contract, defaulting in his payment of rentals thereunder.
5. TRIAL--Taking Written Instructions to Jury Room. In the absence of any controlling statute or absolute rule of practice, it is a matter of discretion to permit the jury to take the written instructions with it on its retirement.
6. APPEAL AND ERROR--Review-- Questions of Fact. Where the evidence reasonably tends to support the verdict of the jury, the same will not be disturbed on review in this court.
Jas. L. Brown and Chas. H. Adkins, for plaintiff in error.
Giddings & Giddings, for defendant in error.
¶1 The defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover the sum of $ 2,700 as a real estate agent's commission. In his petition he alleges in substance that on June 30, 1909, he was engaged in the real estate business in the city of Oklahoma City, and that the defendant, as the owner in fee simple of lot 33 in block 23, listed the same with plaintiff either for sale or lease; that plaintiff procured a lessee willing and able to enter into an agreement with defendant, bringing together one W. F. Bernell and the said defendant, who then and there entered into an agreement in writing as to the lease and purchase of said lot, said contract being in haec verba:
¶2 It is further alleged that pursuant to said agreement the said Bernell took possession of said lot, the plaintiff being the procuring cause of the rental or leasing of the same under said written agreement, but that the defendant had totally failed to pay plaintiff for his services and commission earned in said matter. Under the allegations and proof the contract of agency was in parol. In the original petition it was alleged that "there was no written contract of agency, but that said defendant merely verbally listed with the plaintiff for sale and rental as aforesaid the said property, it being then and there understood that the said plaintiff should receive as his commission the usual and customary [and reasonable] commission paid the real estate agents in the city of Oklahoma City, Oklahoma, at said time," and that "the usual and customary [and reasonable] rate of commission at the time of the employment of the said plaintiff as aforesaid and now is five per cent, and that therefore is due and owing to plaintiff on account of the default of the defendant as aforesaid, and on account of the attempted repudiation of the contract of employment as aforesaid, and on account of the fact that the said defendant claims that he does not owe the said plaintiff anything whatsoever upon said transaction, the sum of five [two] per cent upon the total amount of said contract, and that therefore plaintiff is entitled to recover of the said defendant the sum of two [one] thousand seven hundred [and eighty] dollars [$ 2,700] [$ 1,080] together with interest from the 30th day of June, 1909, at the rate of seven per cent per annum." The words contained in the brackets were inserted by interlineation by permission of the court during the trial. Defendant answered (1) by general denial, and further denied (2) "that any commission as a custom or otherwise was ever agreed upon or understood by any custom whatever," or (3) that "there was any custom, reasonable or otherwise." Counsel for plaintiff in error insist that, the plaintiff below having elected to allege in the conjunctive that it "being then and there understood that the said plaintiff should receive as his commission the usual and customary (and reasonable) commission paid the real estate agents in the city of Oklahoma City, Oklahoma, at said time," he is bound thereby, and, the probata not corresponding with the allegata in that it was not...
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