OPINION
MORLING, J.
We find
it necessary to discuss but one question: whether the
plaintiff furnished a purchaser ready, able, and willing to
consummate the transaction.
The
action is to recover the amount of an agreed commission
earned. While the petition alleges a sale, the case was tried
and submitted to the jury, and is submitted to this court,
only as one for the recovery of a commission for finding a
purchaser, and not for a commission on a sale actually
consummated. The purchaser claimed to have been found was the
Equitable Life Insurance Company of Iowa. The bonds in
question, with other bonds, were sold under a financing
contract to F. C. Hubbell. Defendant had a contract for
paving in Hawarden, on which it apparently had earned a bond
issue of $ 80,000. Hubert Everist was defendant's
manager. On July 22, 1920, he wrote a letter, Exhibit A, to
S.D. Mangum, who was secretary of the Iowa Association of
Municipal Contractors, to the effect that defendant would
have this issue December 15th, and would offer the bonds at
92 cents. The letter also referred to the proposition of
another person to advance $ 55,000 for financing another
section of the work. Plaintiff was officing with Mangum.
Mangum showed the letter to plaintiff. Plaintiff interviewed
F. M. Hubbell and F. W. Hubbell, who were, respectively,
chairman of the board and vice president and secretary of the
Equitable Life Insurance Company. The presentment to the
defendant of the Equitable Life Insurance Company and of its
proposal to purchase relied upon by the plaintiff is in the
form of a letter, Exhibit E, by the Equitable Life Insurance
Company of Iowa to the defendant, August 5, 1920, as follows:
"Your
favor of August 4th, with reference to the paving bonds to be
issued by the City of Hawarden, has been received. Our
understanding of your proposition is as follows: That you are
to sell us on December 15, 1920, $ 80,000.00 of 6 per cent
paving bonds, covering Section 2 of the Blue Print which you
left at this office the bonds to be paid for at 92 cents on
the dollar. This was the proposition offered to us by Mr.
John MacVicar, and we will accept the same
subject to our approval of the legal status of the bonds and
a satisfactory inspection of the benefited district. If this
is the arrangement contemplated by you kindly advise us and
we will arrange to have the district inspected within the
very near future and then can enter into a definite contract
for the purchase of the bonds, provided, of course, our
inspection is satisfactory to us.
"Awaiting
your reply, we remain,
"Very
truly yours,
"Equitable
Life Insurance Company of Iowa."
It will
be noted that the company's alleged acceptance is stated
to be "subject to our approval of the legal status of
the bonds and a satisfactory inspection of the benefited
district." It will be noted further that the Equitable
Life Insurance Company referred the matter back to the
defendant by this statement:
"If
this is the arrangement contemplated by you kindly advise us
and we will arrange to have the district inspected within the
very near future and then can enter into a definite contract
for the purchase of the bonds, provided, of course, our
inspection is satisfactory to us."
This
letter was written by F. W. Hubbell. As a witness for
plaintiff, Mr. Hubbell testified that, following that
correspondence:
"I
did not make any investigation as to the records and
proceedings in these bonds. Before I heard further from Mr.
Everist, he practically withdrew the offer, and said he had
made other plans. * * * These bonds were not purchased
and never were purchased by me or through me from the Western
Asphalt Paving Corporation for the Equitable Life Insurance
Company of Iowa. * * * my father, F. C. Hubbell, entered into
a contract with Mr. Everist to finance the work at Hawarden,
and later purchased the bonds. * * * Q. At the time that
letter was written by you, Mr. Hubbell, and mailed to Mr.
Everist, and before any other or different arrangements were
made, the Equitable Life Insurance Company of Iowa was ready,
able, and willing to purchase the $ 80,000 bonds mentioned in
that letter at 92 cents on the dollar, provided, of course,
the legal status and the inspection of the district was
satisfactory? A. Yes, sir. * * * The Equitable
Life Insurance Company of Iowa cannot finance any job. * * *
Q. As a matter of fact, you did not consider that you had
entered into any contract to buy them? A. No, sir. We had
only made an offer. That offer was never accepted by the
defendants in this case, or any of them. * * * The fact is
that neither I nor my company ever told anybody absolutely
that the company would take these bonds at 92 cents on the
dollar or any other sum. All that was ever said by me in that
regard is contained in the letter marked Exhibit E. * * * I
may have told Mr. MacVicar, subject to the approval of the
district and the legal status of the proceedings, that I
would take the bonds, but I cannot say definitely. * * * The
investment committee [of the Equitable Life Insurance
Company] agreed to take the bonds if they were satisfactory.
* * * Before the Equitable Life Insurance Company would take
any bonds, the legality of the bonds would have to be
investigated by an attorney for the finance committee, and
his approval obtained. This would have to be done, not only
as to the proceedings, but as to the form. That never was
done. * * * Nobody ever did go up to examine for the
Equitable Life Insurance Company of Iowa in regard to these
bonds on the Hawarden job, as far as I know. * * * Q. And
while you didn't consider that as a binding contract, you
did consider it, as you state in your deposition, as an offer
on the part of the Equitable Life Insurance Company to take
the $ 80,000 worth of bonds at 92 cents? A. Yes, sir."
All
street improvement bonds have the same form in the state of
Iowa, practically, as far as witness knew. He said.
"That was so understood at the time." Plaintiff
testified that he first talked with F. M. Hubbell; left him a
memorandum. Later talked with F. W. Hubbell.
"On
the next day after my interview with F. M. Hubbell, I called
on him again, and he told me he had talked with F. W. Hubbell
* * * and that the Equitable Life Insurance Company would
take the $ 80,000 issue of bonds at 92 cents; that he could
not take the $ 55,000 issue, for the reason that the money
advanced was to carry on the work, and under the law the
Equitable * * * was not permitted to advance money that way.
* * * He repeated practically what F. M. Hubbell had said:
that the Equitable Life Insurance Company of Iowa would take
the $ 80,000 worth of bonds at 92 cents,
provided it was found satisfactory,--that their attorney
found that the council's proceedings were regular."
Plaintiff
testified to a telephone conversation between Mangum and
Everist, in which Mangum said to Everist:
"'We
have some money for you;' and then he went on to say that
he had found a purchaser for the $ 80,000 or more of bonds.
He also said that there would probably be a commission to
pay. I did not hear what Everist said, but Mr. Mangum told me
that he told him that he better come to Des Moines and
complete the deal. He also told that the purchase was on the
condition that everything was satisfactory and found to be
regular. Before Mr. Everist came to Des Moines, I obtained a
transcript or copies of the proceedings. * * * I had this
transcript taken to the office of F. W. Hubbell."
After
this, Everist and plaintiff had their first communication, in
which plaintiff says that Everist "then agreed to pay a
2 per cent commission if I found a purchaser for the
bonds."
"I
told him Mr. Hubbell agreed to take these bonds if the
proceedings were found to be legal and regular. * * * Q.
Previous to your seeing the Hubbells, as you have detailed,
you had not had any conversation with Mr. Everist? A. No,
sir. Q. You say that all you did in regard to selling these
bonds you did before you ever saw Mr. Everist? A. Yes, sir. *
* * Q. Up to that time, whatever you had done was done
without any communication or agreement with Mr. Everist? A.
Except the letter which Mr. Mangum showed me, Exhibit A. * *
* In December, 1920, I knew the Equitable Life Insurance
Company had not bought or financed the $ 55,000 worth of
bonds. I swore to the first petition that I filed here in
January, 1921. In that petition I claimed a commission on $
135,000 worth of bonds. I knew that the Equitable Life
Insurance Company would not take the $ 55,000 in bonds. * * *
I did not take Mr. Everist over to the Equitable Life
Insurance Company and introduce him to any of the
officers."
F. W
Hubbell made an investigation at Hawarden, and interviewed
defendant at Sioux City. He testifies that he did not go
there as an officer of the Equitable, to examine the
proposition for the Equitable, and that nobody ever did, so
far as he knew. The reason he...
