Luce v. Ash

• Decision Date: 03 October 1911
• Citation: 132 N.W. 708,28 S.D. 109
• Parties: LUCE v. ASH.
• Court: South Dakota Supreme Court

132 N.W. 708

28 S.D. 109

LUCE v. ASH.

Supreme Court of South Dakota

October 3, 1911

Appeal from Circuit Court, Beadle County; Chas. S. Whiting, Judge.

Action by O. A. Luce against James C. Ash. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

Elrod & Dunham, for appellant.

Ede & Churchill, for respondent.

SMITH P. J.

Action to recover commissions on a land sale. A jury was waived and the case submitted to the court upon an agreed statement of facts. The entire transaction between the parties was by correspondence, and the agreed statement of facts consists wholly of the letters constituting the correspondence, with the additional stipulated statement that "plaintiff has done and performed everything on his part to be done and performed." On August 30, 1906, defendant by separate written contracts listed for sale with plaintiff, a real estate agent at Des Moines, Iowa, two quarter sections of land in South Dakota, one in Clark county, at $19 per acre the other in Beadle county, at $18 per acre, terms of sale upon both tracts $1,200 cash, $640 in two years, balance in ten years, with interest at 6 1/2 per cent. on deferred payments, agent not given exclusive sale, but defendant to notify plaintiff within three days if sold by defendant, the prices named to be good for four months if not sold before. November 1, 1906, defendant wrote and mailed to plaintiff a letter notifying him that he had himself sold the quarter section in Clark county. It is conceded plaintiff never received this letter. On February 28, 1907, plaintiff wrote to defendant as follows: "Mr J. C. Ash, Delmont, S. D.-Dear Sir: A few months ago you listed with me the N.W. 18-113-57 in Clark County, S. D., at $19.00 per acre. Can't you cut this price a little for quick action. I am going out next week and will try to swing it if you will cut the price a dollar or so per acre. I have two or three men who are inclined to that part of the country. Let me hear from you at once. Write me so I will get the letter here next Monday A. M. without fail." To which defendant replied: "Will cut that price $100.00 for all cash but $1400. to run five years, (an old line mortgage at 7% just being negotiated." March 14, 1907 plaintiff wrote defendant: "I was up to S.D. last week and had a man look at your land and I think I can close a deal with him if you will make terms so he can swing it. He has a second mortgage for $360.00 on the S.W. 12-116-59 Clark Co. due in about a year and a half that he wishes to turn in. It draws 6%, is on a man that is perfectly good and both he (the man wants your land) and I will endorse the note and either of us is good. He will pay $800.00 or $900.00 cash besides this, and would like five years on the balance with the privilege of paying $100.00 or more at any interest paying date. I have priced the land to him at $19.00 per acre, and you are to pay me $100.00 commission. Now if you will accept on these terms, please give me the authority to sell in that way and I will push it through at once. I am almost sure we made it. Let me hear by return mail." March 18, 1907, defendant replied: "Your favor of the 14th inst. at hand and contents noted. I cannot handle the second mortgage you speak of but will take a second mortgage of $500.00 back on the land for five years at 6%, and if your party is good you could draw a $100.00 note and I will sign it over to you for your commission if he cannot raise the balance. I think I told you I had just made a loan of $1400. on this land that runs five years at 7% with privilege of prepayment in even hundreds. Hoping this will enable you to close the deal." March 22d defendant wired plaintiff: "Will accept twelve hundred cash. Second mortgage for balance." On the same day, in response to the last letter and telegram, plaintiff wrote defendant: "I offer $1200 cash, purchaser to assume mortgage for $1400 and give second mortgage for the balance of the purchase price at $18.00 per acre." March 26th defendant replied by telegram: "I accept offer twenty third inst., seven per cent. on balance." On the day this telegram was received plaintiff entered into a written contract with Gaines & Atkins, purchasers, for a sale of the quarter section in Clark county at $21 per acre, and sent defendant a check for $25 to apply on the purchase price. On April 4, 1907, defendant wrote plaintiff as follows: "When making deed yesterday I noticed the numbers you gave are on the Clark county land, which I sold last October, and what I was selling is about nine miles west in Beadle county. I will hold the papers till I hear whether you made a mistake in writing the numbers or have looked at the wrong land. If you have looked at the right piece of land, the S.W. of 23-113-59 wire at my expense and I will forward deed and note by return mail. If not, write and I will return your earnest money." On April 7th plaintiff replied as follows: "I arrived home from Clark Co. S. Dakota last evening to find your letter in which you state you sold last October the land I bought. We found that out when we were there, or the man who was working on the land said so. I am not determined at this writing what steps I shall take in this matter. The earnest money you may hold till the purchaser has an opportunity to look up this Beadle county quarter." On the 8th of April defendant returned to plaintiff the $25 earnest money paid on the purchase price of the land, which the plaintiff returned to the bank who sent it, and on May 20th defendant notified plaintiff that this money was deposited in said bank subject to his order. It is conceded that defendant did not intend to authorize a sale of the Clark county land, but believed he was selling the quarter in Beadle county. It is also conceded that "plaintiff had no knowledge that defendant believed he was selling the Beadle county land."

Plaintiff claims to recover from defendant as commission the difference between $18 per acre, the price offered in plaintiff's letter of March 23d and accepted by defendant's telegram of March 23d, and $21 per acre, the price at which the land was sold to Gaines & Atkins. The trial court denied plaintiff's claim on the sole ground that he had fraudulently concealed that the land had been sold for $21 per acre instead of $18 named in the offer of March 23d. Appellant's counsel argue at length, both orally and in his brief, that defendant should not be permitted to repudiate the indebtedness for commissions by reason of his own mistake as to the land sold, for the reason that the mistake was not participated in by plaintiff or occasioned by plaintiff's act. The trial court did not base its conclusions and judgment upon the ground of mistake, but upon the ground of fraud in the concealment of the price at which the land was sold. It is conceded by counsel on both sides that the issues presented by the pleadings are immaterial; the whole facts and evidence being stipulated. Cable Co. v. Rathgeber, 21 S.D. 418, 113 N.W. 88; Sweet v. Myers, 3 S. D. 324, 53 N.W. 187.

Appellant contends that the stipulation "that plaintiff has done and performed everything on his part to be done and performed," should be construed as stating an ultimate conclusion of fact, while respondent contends it states a conclusion of law only, and is an invasion of the function of the court, and of no effect. It may be conceded that the stipulation is inoperative if it be an attempt to determine the law properly applicable to stipulated facts.

If this paragraph of the stipulation relates to acts to be done or performed by plaintiff, what are those acts? The solution of this question requires an examination of the record to ascertain the actual contract of employment....