Martin v. Wilson
| Decision Date | 01 July 1913 |
| Citation | 134 P. 532,24 Idaho 353 |
| Parties | JAMES A. MARTIN, Respondent, v. MARY WILSON, Appellant |
| Court | Idaho Supreme Court |
REAL ESTATE BROKER-COMMISSION-PURCHASER-SALE.
1. To entitle a real estate agent to commission a contract of employment is necessary, and where employment is alleged, and where, as in this case, the employment is denied, the relation of principal and agent must be affirmatively established by preponderance of the evidence, though such relation may be implied from such facts and circumstances as satisfactorily establish its existence.
2. Where a contract is entered into by the owner of real estate and a proposed purchaser for the sale of the real estate, and the contract provides that the purchaser agrees to buy the undivided one-half interest of three minor heirs, and the contract further provides, "if he shall not buy said interest of said minor heirs for the said sum of $2,500 upon the terms aforesaid, then this agreement shall be of no effect, and the first party shall be under no obligation to convey her interest in said property [referring to appellant who was the first party of such contract], held, that such provision is a mere option and not a contract of sale, and that the contract is void in default of compliance therewith.
3. An agent or broker employed to sell land or find a purchaser for the same is not entitled to a commission therefor where his prin- cipal merely gives an option to purchase to the party procured by such agent, and no sale is made.
4. A contract made to pay a broker a certain commission upon a sale of real estate in consideration of the broker furnishing a purchaser is not satisfied by the furnishing of a purchaser who enters into a contract to purchase the land upon the condition of buying a half interest in said property at a guardian's sale, where the contract provides it shall be optional with the purchaser to buy or not, and such interest is not bid for or purchased by the proposed purchaser, and a commission cannot be recovered by the broker for such sale.
APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. C. O. Stockslager, Judge.
Action to recover for services as a broker. Judgment for plaintiff. Reversed.
Judgment reversed and a new trial granted. Costs awarded to appellant.
Longley & Hazel, for Appellant.
The relation of principal and agent necessarily involved in this case depends upon, first, what, if anything, defendant employed plaintiff to do; second, whether or not such employment was carried out. (Williams v. McGraw, 52 Mich. 480, 18 N.W. 227; Castner v. Richardson, 18 Colo. 496, 33 P. 163; Earp v. Cummins, 54 Pa. 394 93 Am. Dec. 718; Samuels v. Luckenbach, 205 Pa. 428, 54 A 1091.)
"To entitle a real estate agent to commission, a contract of employment is necessary." (Geier v. Howells, 47 Colo. 345, 107 P. 255, 27 L. R. A., N. S., 786.)
"In an action to recover the agreed compensation to be paid on the making of a sale of property, the broker is not entitled to recover for merely finding a purchaser, when he failed to consummate a sale." (Dorrington v. Powell, 52 Neb. 440, 72 N.W. 587; Lye v. University etc. Co. (Tex. Civ. App.), 30 S.W. 726; Sullivan v. Milliken, 113 F. 93, 51 C. C. A. 79; Chaffee v. Widman, 48 Colo. 34, 139 Am. St. 220, 108 P. 995.)
The rule is, that a broker employed to effect a sale, who secures a mere option, is not entitled to a commission. (Tousey v. Etzel, 9 Utah 329, 34 P. 291; Dinkelspiel v. Nason, 17 Cal.App. 591, 120 P. 789; Bun v. Keach, 116 Ill.App. 397.)
The plaintiff tells us he was to sell the premises for defendant. Instruction No. 5 effectually removes this requirement, and tells the jury in effect that while the parties may have so agreed, yet, to recover, plaintiff need not carry out his contract of employment. (Eckert v. Collot, 46 Ill.App. 361.)
Sweeley & Sweeley, for Respondent.
The broker, respondent, having found a purchaser who was willing, ready and able to buy at the price and terms named by his principal, is entitled to his commission. (Church v. Dunham, 14 Idaho 776, 96 P. 203; Cornell v. Hanna (Kan.), 53 P. 790; Sturgeon v. Culver, 87 Kan. 404, 124 P. 419; Fiske v. Soule, 87 Cal. 313, 25 P. 430; Martin v. Ede, 103 Cal. 157, 37 P. 199.)
An instruction stating the law applicable to one theory of the case and substantially covering all the facts upon which the correctness of such theory depends is proper. (Wheeler v. Gilmore & P. R. Co., 23 Idaho 479, 130 P. 801.)
"If an appeal is taken from the judgment and also from an order refusing a new trial, and an undertaking is given 'on such appeal,' without stating upon which appeal it is given, the appeals will be dismissed for want of a proper undertaking." (Mathison v. Leland, 1 Idaho 712; Eddy v. Van Ness, 2 Idaho 93, 101, 6 P. 115; Motherwell v. Taylor, 2 Idaho 139, 148, 9 P. 417; Cronin v. Bear Creek Gold Min. Co., 3 Idaho 438, 32 P. 53; Hoskins v. Woodin, 4 Idaho 292, 38 P. 933; Schiller v. Small, 4 Idaho 422, 40 P. 53; Weil v. Sutter, 4 Idaho 748, 44 P. 555; Kelly v. Leachman, 5 Idaho 521, 51 P. 407; Wallace v. McKinlay, 6 Idaho 95, 53 P. 104; Baker v. Oregon R. & N. Co., 8 Idaho 36, 66 P. 806; Thum v. Bailey, 12 Idaho 510, 86 P. 279; Home v. Wilkins, 71 Cal. 626, 12 P. 799.)
In the latter case application was made to the court by appellant to be allowed to file a proper undertaking under sec. 954, Code Civ. Proc., which section is identical with sec. 4822, Rev. Codes of Idaho, but the court said that the section referred to does not authorize it. (See, also, Heydenfeldt's Estate, 119 Cal. 346, 51 P. 543; Commercial Bank v. Wells, 5 Cal.App. 473, 90 P. 981; Little v. Thatcher, 151 Cal. 558, 91 P. 321; Pirrie v. Moule, 33 Mont. 1, 81 P. 390; Cook v. Oregon S. L. R. Co., 7 Utah 416, 27 P. 5; Bruhn v. Steffens, 66 Wash. 144, 119 P. 29.)
The bond in question was void. The objections thereto cannot be "cured." As it was void, there was in fact no bond at all, as stated by this court in the case of Eddy v. Van Ness, 2 Idaho 93, 6 P. 115, and it was not competent for appellant to give a new bond after the time had expired to perfect his appeal; neither did respondent waive his right to object, for sec. 4809 relates only to bonds which are "insufficient" or "defective" and not to those entirely void. (Cole v. Fox, 13 Idaho 123, 88 P. 561; Village of Hailey v. Riley, 13 Idaho 749, 92 P. 756; West v. Dygert, 13 Idaho 641, 92 P. 753; Haas v. Teters, 17 Idaho 550, 106 P. 305.)
This is an action by a broker against his principal for commission for selling real estate. The complaint alleges that the defendant represented to the plaintiff that she was the owner of certain real property, and that on the 4th of August, 1911, the defendant, through and by her husband, A. G. Wilson, acting as her agent, authorized and empowered the plaintiff to find a purchaser for the said land above described, and at said time named a certain price and terms for the sale thereof, and at said time agreed to pay the plaintiff, in case he found a purchaser, the customary and usual commission, and that in pursuance of such authority the plaintiff found and interested a purchaser in said land and introduced the purchaser to the defendant as a purchaser for said land, and that said purchaser and the defendant negotiated for the sale thereof, and that thereafter on the 8th day of August the purchaser and the defendant agreed upon the price, as given to the plaintiff, and terms of sale; that the purchaser so found and interested in said land and introduced to the defendant by the plaintiff was able, willing and ready to buy the land upon the price and terms so named by the defendant; that the purchase price agreed to between the purchaser and the defendant was the sum of $ 5,000; that the commission upon the sale was 5% and amounted to the sum of $ 250, for which judgment was demanded.
The answer of the defendant denies the allegations of the complaint, except as hereafter mentioned, and denies that she represented to plaintiff that she was the owner of the land and alleges the fact to be that at the time and for some time prior thereto she was the owner of an undivided one-half interest, and that certain minor heirs of William McGill, deceased, were the owners of the other undivided one-half interest in said property, all of which the plaintiff well knew at all of the times mentioned in the complaint. The answer also denies that she had authorized or empowered her husband, A. G. Wilson, or anyone else, as her agent to deal or act in any manner or thing relative to the sale of said land, and denies that Wilson was by her authorized or empowered to make a contract to find a purchaser, and denies that Wilson did enter into a contract with plaintiff to find a purchaser of the land, and denies that Wilson named or fixed any terms or price of sale, and denies that Wilson, acting as her agent or otherwise, agreed to pay plaintiff any commission. The answer also denies that, pursuant to any authority given to plaintiff or otherwise, plaintiff found or interested a purchaser in said land, and admits that plaintiff brought one Arthur Mineau to look at the land, and thereafter a certain contract in writing was entered into between Mineau and the defendant, and that under said contract and the terms thereof Mineau and the defendant entered into negotiations for the sale of the land. The defendant also denies that the purchaser...
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