Manska v. San Benito Land Co.

• Decision Date: 30 September 1921
• Docket Number: No. 34023.,34023.
• Citation: Manska v. San Benito Land Co., 191 Iowa 1284, 184 N.W. 345 (Iowa 1921)
• Parties: MANSKA v. SAN BENITO LAND CO.
• Court: Iowa Supreme Court

191 Iowa 1284

184 N.W. 345

MANSKA

v.SAN BENITO LAND CO.

No. 34023.

Supreme Court of Iowa.

Sept. 30, 1921.

Appeal from District Court, Monona County; Geo. Jepson, Judge.

Action at law to recover commission alleged to have been earned by plaintiff as defendant's agent in the sale of land.There was a directed verdict for plaintiff, and defendant appeals.Reversed.Zumbrunn & Meyer, of Kansas City, Mo., and Miles W. Newby, of Onawa, for appellant.

Prichard & Prichard, of Onawa, for appellee.

WEAVER, J.

It is the claim of the plaintiff that defendant, being the owner of 435 acres of land in Monona county, employed or authorized him as its agent to find a purchaser for said property at the stated price of $85 per acre, for which service when performed defendant agreed to pay plaintiff a commission of $2.50 per acre.Plaintiff alleges that, acting upon such appointment and authority, he did find and produce the defendant a purchaser, ready, able, and willing to buy the land at the price of $85 per acre, thereby earning the agreed commission; but defendant neglects and refuses to pay the same.

The defendant denies the allegations of the petition.A jury was impaneled for the trial of the issues joined, and at the close of the plaintiff's evidence in chief the defendant moved for a directed verdict in its favor on the ground that the evidence was clearly insufficient to sustain a verdict for the plaintiff.The motion was denied and defendant proceeded to introduce evidence to sustain its defense.At the close of all the evidence, defendant renewed its motion for a directed verdict.The plaintiff also moved for a directed verdict against the defendant.

On these filings being made, the court denied the defendant's motion, sustained the motion filed by the plaintiff, and directed the jury to find for plaintiff for the full amount claimed by him.On the verdict so returned judgment was entered, and defendant appeals.

The position taken by the court on the questions so presented will be better understood by one or two brief citations from the record upon which this appeal has been presented.In denying defendant's motion for a verdict filed in chief, the court, after stating the situation as it has then been developed by plaintiff's testimony, said that “under the state of the record there is a question for the jury.”When both motions had been filed at the close of all the evidence, the court announced its ruling in favor of plaintiff, saying:

“There are facts in this case in my judgment that, if a motion had not been made by both sides, would have warranted the court in submitting this case to the jury.

Both sides having asked for a directed verdict that is a concession by both sides that it is a question of law only; that is, the uncontroverted evidence on one side or the other entitles one side or the other to a directed verdict.

The court does not know that it can say any more in ruling on this motion that it has suggested to counsel in the way of suggestions, during the trial, and during the argument.

The court is of the opinion that if Mr. Manska had the conversation with Mr. Doffing that he claims to have had, that the jury might well find that when he found a purchaser, Kehoe & Kempmeyer were in a position to take care of the transaction.

As stated before, a great deal of counsel's argument would have full force was this an action between Mr. Mohr and Mr. Doffing to compel the performance of Mohr's contract.But it is not.This is simply an action to recover a commission for finding a purchaser, and both sides having asked for a directed verdict, the motion on the part of the plaintiff will be sustained.”

The italics in this quotation are ours, and the language so emphasized clearly indicates the controlling influence upon the mind of the court of the fact that each of the parties had asked a directed verdict, while the ruling, in its entirety, makes it equally clear that were it not for the fact that both had so moved, the issues would necessarily have been submitted to the jury.If there was error in this ruling, it will necessitate a reversal without consideration of other errors assigned.The question is not a new one in our practice and has had the attention of the court on several occasions.The rule stated by the trial court has the support of precedents in some jurisdictions; but in other jurisdictions, including our own, it has been expressly disapproved.In Bank v. Milling Co., 103 Iowa, 524, 72 N. W. 689, after stating the proposition and saying it seems to be established by the weight of authority, we expressly refrain from passing upon it.In a later case German Bank v. Bates Imp Co., 111 Iowa, 432, 82 N. W. 1005, we said, “This court has never passed the question of application of the rule in our state and we understand that the practice with us has been different,” and we refused to recognize it in the case there decided.Later, in German Bank v. Bates Imp. Co., 111 Iowa, 435, 82 N. W. 1005, the point was again considered.There, as here, at the close of all the evidence the plaintiff and defendant each moved for a directed verdict in its favor; the court held with plaintiff and directed a verdict against defendant.There, as here, also, it was argued that both parties having asked a directed verdict, it was...