Marble v. Bang

• Citation: 54 Minn. 277
• Parties: L. L. MARBLE <I>vs.</I> ANDREW BANG.
• Decision Date: 21 July 1983
• Court: Supreme Court of Minnesota (US)

Page 277

54 Minn. 277

L. L. MARBLEvs.

ANDREW BANG.

Supreme Court of Minnesota.

Submitted on briefs July 20, 1893.

Affirmed July 21, 1983.

Appeal by plaintiff, L. L. Marble, from an order of the District Court of St. Louis County, J. D. Ensign, J., made October 29, 1892, denying his motion for a new trial.

The defendant, Andrew Bang, owned the south half of the northwest quarter, and the southwest quarter of the northeast quarter, of section twenty-nine (29) T. 58, R. 18, on the Mesaba Range, and on February 3, 1892, made plaintiff his exclusive agent until April 1st then next, to sell it for him. If he sold it, Bang was to have $2,000 and one-third of all that was obtained over $3,000. Marble was to have the residue for his services. On February 24, 1892, Marble made a contract with F. W. Merritt to sell him the land for $5,000, and agreed to deliver a good deed of it free from incumbrance on or before March 1, 1892. Merritt paid down $500 and agreed to pay $3,500 more when the deed should be delivered, and the remaining $1,000 when the patent for the land should be issued and delivered to him. On being told of this sale, Bang refused to make a deed. Marble returned the $500 to Merritt, and brought this action against Bang to recover $2,333.33. When plaintiff's evidence was in, the Judge directed the jury to return a verdict for defendant. The plaintiff excepted, made, settled and filed a case containing his exceptions, and on it and the pleadings, moved for a new trial. It was denied, and he appeals.

C. F. Lamb, for appellant.

John Jenswold, Jr., for respondent.

MITCHELL, J.

The cause of action, if any, alleged in the complaint, is for commissions earned by procuring a purchaser for defendant's property, ready and willing to buy on the terms authorized, and not for damages for a revocation of plaintiff's agency before the expiration of the time named in the agreement of the parties. This disposes of plaintiff's contention that he was entitled to at least nominal damages on the latter ground.

Construing the agreement (Exhibit A) most favorably to the plaintiff, — that he would have earned his commission upon producing a purchaser ready, able, and willing to buy on the terms therein named, — and assuming (what is not very clear) that Merritt, the alleged customer, was ready and willing to buy on the terms named in the memorandum, (Exhibit B,) the plaintiff was not entitled to recover, for the reason that the terms named in the latter were not...