McDermott v. Mahoney

• Decision Date: 17 February 1908
• Citation: 139 Iowa 292,115 N.W. 32
• Parties: MCDERMOTT v. MAHONEY.
• Court: Iowa Supreme Court

139 Iowa 292

115 N.W. 32

MCDERMOTT

v.MAHONEY.

Supreme Court of Iowa.

Feb. 17, 1908.

Action to recover a commission for the sale of real estate. Verdict and judgment for plaintff, from which defendant appeals. Affirmed on rehearing.

For former opinion, see 106 N. W. 925.

Weaver, J., dissenting.

B. I. Salinger and Owen Lovejoy, for appellant.

Rose & Henderson and E. B. Wilson, for appellee.

McCLAIN, J.

The first trial of this case in the lower court resulted in a judgment for defendant on a directed verdict, which was reversed on appeal. See 119 Iowa, 470, 93 N. W. 499. On the second trial there was a verdict for the plaintiff and judgment thereon, from which the present appeal was taken, and the judgment was affirmed; but, a rehearing having been granted, the case is now before us for final determination. The essential facts to be considered in passing upon the alleged errors relied on in the present submission are as follows: The defendant on May 30, 1899, signed and delivered to plaintiff a written instrument appointing plaintiff his agent and authorizing him to sell two tracts of land, one in Calhoun county and the other in Greene county, otherwise specifically described, for an agreed commission of $1 per acre, which agreement was to be in force for one year. In this instrument the defendant authorized the plaintiff to enter into a written contract for him and on his behalf for the sale of said property, and also agreed to pay plaintiff “the above-named commission as soon as the deal is made for making such transfer or deal, sighting (sic) me to a prospective buyer or being instrumental in any manner whatever.” The terms of sale named in the instrument were “$35 per acre, $2,000 cash; balance will give time on at 6 per cent. interest.” On May 21, 1900, the plaintiff produced to the defendant as a prospective buyer one Cathcart, who as the evidence tended to show said to the defendant that he had come in answer to an advertisement of plaintiff, which he had seen, and stated that he believed that he would buy the Greene county land at $35 per acre. Defendant replied that he would not sell it at that price, and that $40 per acre was the lowest price that would buy it. Cathcart inquired whether he had not listed it at $35 per acre, and defendant said: “Yes; but it is worth more money, and I won't let it go at that price.” Thereupon the plaintiff told defendant that if he did not sell according to the contract plaintiff expected him to pay his commission, and defendant said, “I will pay you your commission;” that he would rather pay such commission, because he would rather lose $1 an acre than lose $5 on the price. Defendant also said that, even if he wanted to sell, his wife would not sign the deed, but that he would go into the house and see her, and he then reported that she was not satisfied to sell, and Cathcart, with plaintiff, terminated the interview. There was testimony of Cathcart to the effect that at the time this conversation was held with defendant he was ready, willing, and able to buy the land on the terms set forth in the written instrument and in the advertisement, including the payment of $2,000 cash; that he did not have that amount of money with him, but that he could have procured it within one or two days. There was further evidence tending to show that later in the same day at plaintiff's office Cathcart had another conversation with defendant with reference to the purchase of the farm on somewhat different terms from those embodied in the written instrument and advertisement; but no arrangement was perfected, and Cathcart made no further effort at that time to effect the purchase. Subsequently there were further negotiations between Cathcart and defendant with reference to the purchase of the Greene county land, and also with reference to the Calhoun county land; but these negotiations did not result in a sale. In the meantime, however, plaintiff had claimed his commission from defendant on the ground of the production of Cathcart as a purchaser ready, willing, and able to pay; and this action is brought on the theory that plaintiff's commission, as provided for in the written instrument, became due on the refusal of defendant to accept the purchaser thus offered--plaintiff's allegation being that pursuant to and in conformity with the provisions of said written contract, set out as an exhibit to plaintiff's petition, plaintiff did on May 21, 1900, procure a purchaser ready and willing to purchase upon the terms agreed upon in the written contract, who offered to pay the price named therein, but that the defendant then and there refused to sell said land at the price stated and demanded a greater price. Plaintiff also alleged by way of amendment that he cited defendant to a buyer, and was instrumental in bringing defendant and said buyer together, and that he had performed the conditions of the contract on his part. In a second amendment the plaintiff alleged that defendant made and delivered to him his certain contract and agreement (referring to the same instrument set out as an exhibit to the original petition), which the plaintiff orally accepted, and that plaintiff entered upon the performance of said contract with the full knowledge of the defendant; that plaintiff found a purchaser at and upon the terms and conditions therein stated, when he produced to the defendant; that the defendant refused to comply with the terms of the contract and the agreement, and refused to make and execute a conveyance of said real estate upon the terms and conditions stated in said contract, demanding a greater price than that specified; and, further, that Cathcart as such prospective purchaser was then and there ready and willing to purchase at and upon the terms and conditions specified and agreed upon in said contract and agreement, and by the refusal of defendant to comply with the terms of the agreement plaintiff was prevented from a further compliance and defendant thereupon waived a further compliance; that plaintiff then and there demanded of and from defendant the payment of plaintiff's commission as provided in said contract, and that no part of said sum has ever been paid; and that, but for the refusal of the defendant to comply with the contract and agreement, said Cathcart would have purchased said real estate at and upon the conditions and terms specified. Defendant denied generally the allegations of plaintiff's petition and the amendments thereto, and for further answer alleged a material alteration of the instrument, thus raising an issue which was submitted to the jury and found against the defendant. With reference to this issue of alteration no question is now raised, and the only issue of fact with which we are concerned is that relating to the performance by plaintiff of the conditions of the contract and agreement to be by him performed entitling him to his commission.

1. One of the contentions for appellant is that plaintiff sought recovery on a written contract, and the court instructed the jury that there could be no recovery by plaintiff unless the jury found that the plaintiff and defendant entered into the written contract pleaded by defendant and introduced by him in evidence, and that as the contract thus pleaded and proven was signed only by the defendant, and was orally accepted by the plaintiff, the contract was oral, and not in writing, and the plaintiff could not, therefore, recover; there being a variance between the allegations and the evidence. It is to be noticed, however, that plaintiff in his amendment expressly alleged the execution and delivery by defendant of the written instrument, and its oral acceptance, and the performance thereof by plaintiff. It further appears that in the instructions asked by defendant and given by the court the instrument is expressly referred to as the writing sued upon, and that the question of variance between the allegations in the pleadings and the evidence as offered in support thereof was in no way raised until after verdict. As the plaintiff expressly relied upon a writing executed by defendant and orally accepted by plaintiff and acted upon by him, and the evidence tended to support the allegations in this respect, there was no prejudicial error in referring to the instrument as a written contract. It is not claimed that the written instrument signed and delivered by defendant and acted upon by plaintiff was not a mutually binding obligation or contract. The claim is that it was not a written contract. As there is no controversy with reference to the obligations of the parties arising by the delivery of the instrument and its acceptance, we fail to see any possible prejudice which could have resulted to defendant from the reference in the instructions to the instrument as the written contract of the parties. Further, we think that a written instrument purporting to set forth the mutual obligations of a contract, which, though unilateral in form and signed by one party only, is by him delivered to the other and accepted as the contract between the parties, is a written contract. Where a written agreement signed by one party is accepted and adopted by the other, and acted upon, it becomes their contract in the same sense as though both parties had signed it. Attix v. Pelan, 5 Iowa, 336;Dows v. Morse, 62 Iowa, 231, 17 N. W. 495;Sellers v. Greer, 172 Ill. 549, 50 N. E. 246, 40 L. R. A. 589;Vogel v. Pekoc, 157 Ill. 339, 42 N. E. 386, 30 L. R. A. 491;Horn v. Hansen, 56 Minn. 43, 57 N. W. 315, 22 L. R. A. 617;Bigler v. Baker, 40 Neb. 325, 58 N. W. 1026, 24 L. R. A. 255;Graves v. Smedes' Adm'r, 7 Dana (Ky.) 344; Woodlock v. Meyerstein, 5 Mo. App. 591. The cases relied on for appellant relate to the question of mutuality, and hold that a written proposition, not accepted, does not become a written contract. It would certainly be a startling proposition to announce that an action by the grantee on the...