McMacken v. Lennan

• Decision Date: 14 May 1923
• Docket Number: 5263
• Citation: 46 S.D. 448,193 N.W. 668
• Parties: ROY McMACKEN, Plaintiff and respondent, v. C. E. LENNAN, Defendants and appellant.
• Court: South Dakota Supreme Court

46 S.D. 448

193 N.W. 668

ROY McMACKEN, Plaintiff and respondent,

v.

C. E. LENNAN, Defendants and appellant. South Dakota Supreme Court Appeal from Circuit Court, Walworth, County, SD Hon. Joseph H. Bottum, Judge #5263--Affirmed W. M. Potts, Mobridge, SD Attorney for Appellant. Stephens & McNamee, Pierre, SD Attorneys for Respondent. Opinion filed May 14, 1923

GATES, J.

Plaintiff sued for rea1 estate broker's commission in the sum of $1,776, that being: $1 per acre. Defendant admitted the employment, but said the acreage in which he agreed to pay commission was 998 instead of 1,776, and that the agreement was that such commission as not to be paid until he received sufficient payments to entitle the purchaser of a deed.

The jury believed plaintiff as to the time when the commission was earned and believed the defandant as to the acreage, for it returned a verdict for plaintiff of $998. From the judgment and an order denying new trial, defendant appeals.

The only alleged error argued by appellant was the refusal of the trial court to permit the introduction in evidence of the following letters written by appellant to respondent on February 10, 1921, and March 28, 1921, respectively:

[46 SD 50]

Exhibit 3.

"Pierre, S. D., 2-10-21.

"Roy McMacken, Pierre, S. D., and Trail City--Dear Sir: I have word Wood nor Spencer can make May 1st payment. You wanted me to advise you if such proved to be likely so here I advise. May be you can find some one who will be able to take over their contract, as all of the 6,000 due May 1st, goes to pay owner of 500 acres that had to include in contract, and I will not be able to pay cash enough to take same or make payment to him. It will probably go by board. Wood has sold enough posts and wood and hay to clear his 2,000 I guess. C. E. Lerman.

Exhibit 4.

"Roy McMacken, Trail City, S. D.--Dear Sir: As I advised you from Pierre that I did not think that Mr. Spencer or Wood were going to be able to pay up, the next payment, on May 1st, and also had not paid the taxes that were due March 1st, so I guess that it is all off. I don't think that Spencer can meet this and surely don't see how Wood can. Now as you wanted me to advise you in case of something like this so you could see if you could not make a sale. I suppose that if you did it would necessitate some kind of an assignment over of their contract, or the contract, or something similar. Please let me hear from you when you get this and greatly oblige, if you still care to take it up. The $2,000 that was paid in I sent direct to the party who owned the N.D. land, so have not got a dollar out of it myself. If you think there is any prospect of your finding a turn for this please let me hear from you and greatly oblige,

"Yours truly."

It is undisputed that respondent brought the vendor and vendee together, and that they entered into a contract on May 10, 1920, by the terms of which the payments were to be as follows:

$100 at the date of contract.

$500 on or before May 15, 1920. $1,400 on or before October 1, 1920. $6,000 on or before May 15, 1921. $2,500 on or before May 15, 1922. $2,756 on or before May 15, 1923. $13,256.70 on or before May 15. 1925. It was further agreed that purchaser would be entitled to a deed when half of the consideration was paid. It is undisputed that the first three payments, aggregating $2,000, were made. It will be noticed that the letters, Exhibits 3...