Mehlberg v. Redlin, 9725

• Citation: 96 N.W.2d 399,77 S.D. 586
• Decision Date: 12 May 1959
• Docket Number: No. 9725,9725
• Parties: Anita M. MEHLBERG, d/b/a Mehlberg's Real Estate Service, Plaintiff and Respondent, v. Elmer A. REDLIN and John Kranz, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 399

96 N.W.2d 399

77 S.D. 586

Anita M. MEHLBERG, d/b/a Mehlberg's Real Estate Service Plaintiff and Respondent, v. Elmer A. REDLIN and John Kranz, Defendants and Appellants.

No. 9725.

Supreme Court of South Dakota.

May 12, 1959.

Rehearing Denied June 8, 1959.

Henrikson & Lobitz, Watertown, for defendants-appellants.

Gribbin & Burns, Watertown, for plaintiff-respondent.

SMITH, Judge.

This action was brought by plaintiff to recover judgment against defendants for a broker's commission for services rendered at the specific request of defendants in the sale of a Watertown residential property. A general denial was interposed by defendants. The jury returned a verdict for plaintiff as prayed in her complaint. The defendants have appealed and, predicated upon grounds stated in their motions for a directed verdict, and for judgment n. o. v., assert that the evidence is insufficient to support the verdict in several particulars.

In the spring of 1957 of the defendants were engaged in building homes at Watertown, South Dakota, for sale. In late April defendant Redlin called at plaintiff's real estate office in Watertown and offered to list two of their new properties for sale. According to Redlin's version of their negotiations, the property of present concern was listed at $15,500 net to defendants; all to be received above that amount to constitute plaintiff's commission. According to plaintiff, she having refused to serve defendants on the basis suggested, Redlin finally agreed that she would be allowed a commission at that price of 5% on the first $5,000 and 2 1/2% on the remainder, and told her to go ahead and sell it. It was understood that defendants reserved the right to sell the property if they found a purchaser.

A synod of the Evangelical Lutheran Church had an established church in Watertown. A Rev. Schumann was pastor of that church. A second church was in process of organization in the spring of 1957. A plan was afoot to build a parsonage for the new pastor and an apartment had been rented for his use until a new home could be erected. Actual construction of the new dwelling had not commenced. On Friday, April 26th of that year Rev. Kell arrived to take over the new pastorate. On the same day his furniture arrived in a van. It was determined that the rented apartment was wholly inadequate and Rev. Schumann undertook to assist in finding suitable quarters for rent. He called plaintiff for a list of rental properties. She gave him the addresses of two properties she had for rent, and in addition she told him of the two new properties of defendants she had for sale. During the afternoon of that day Schumann, Kell and an officer of the synod viewed defendants' property from the outside. Thereafter they went to the office of defendant Redlin at his lumberyard. They inquired as to whether he would rent the dwelling and received a negative answer. When asked if he said anything to them about selling the house, he replied, 'Yes, I made them an offer. The committee knew already what I wanted, it was $15,500.' He accompanied them to and into the property. While they were in the house Rev. Schumann mentioned to Redlin that they had received the listing from plaintiff. Schumann testified, 'He did not reply. Mr. Redlin is hard of hearing and I would not be willing to say that he heard me.' Redlin was then wearing a hearing aid. When inquiry was made as to whether Schumann had told him they had received the listing from plaintiff, he first replied, 'I don't remember that. There was a lot of fellows talking, everyone was excited because the load was loaded and he wanted to move in an hour, the sun was pretty near down.' Thereafter he testified, 'There was nothing said, no' * * *. 'No. I didn't know nothing about it.'

Within a brief time the committee returned to Mr. Redlin's office and told him they would buy the property. He suggested the formal contract could await until to the first of the next week. Rev. Kell moved in that evening. The contract to purchase for $15,500 was executed at a local bank on the following Tuesday.

About a week or ten days after the sale was made Redlin called at plaintiff's office and told her she need not sell the property as it was sold. Upon inquiry he informed her that it had been sold to the church. She then asked for her commission, and he answered she 'didn't do anything toward the sale.' This litigation resulted.

It is elementary that in reviewing the refusal of the trial court to direct a verdict for a defendant, this court must view the evidence in the light most favorable to plaintiff and accord plaintiff the benefit of all reasonable inferences which may be drawn therefrom. Schuknecht v. Chicago, M., St. P. & P. R. Co., 74 S.D. 61, 48 N.W.2d 917.

The principal contention made by the defendants is that the evidence is insufficient to support a finding by triers of the fact that the plaintiff was the 'procuring cause' of the sale consummated by Redlin.

In the absence of a special contract, to earn a commission a broker must be the 'procuring cause' of a sale consummated by his principal. 8 Am.Jur., Brokers, Sec. 172, p. 1087. This universally accepted principle was recently reiterated by this court in Dobson v. Wolff, 74 S.D. 493, 54 N.W.2d 469.

A number of the cases digested in 34 Words & Phrases, phrase the definition of 'procuring cause' substantially in terms as one originating a series of events which, without break in their continuity, result in the accomplishment of the prime object of the broker's employment.

The Restatement employs the phrase 'effective cause' and states, 'An agent is an 'effective cause,' as that phrase is used in this Section, when his efforts have been sufficiently important in achieving a result for the accomplishment of which the principal has promised to pay him, so that it is just that the principal should pay the promised compensation to him.' Restatement of Agency 2d, Sec. 448, Comment a.

In an attempt to demonstrate that the limited activities of plaintiff in calling the attention of the representatives of the purchaser to defendants' property could not reasonably be said to have been the procuring cause of the sale to the synod, defendants urge upon us a group of cases, of which our case of Dobson v. Wolff, supra, and that of Carney v. John Hancock Oil Co., 187 Minn. 293, 245 N.W. 367, are typical, wherein the courts concluded that a broker who had either introduced a purchaser to the property or to the principal had failed to establish that he was the procuring cause of the sale in question. These cases are clearly distinguishable from the case at bar. In each respective case it was evidence of that which intervened the initiation of negotiations by the broker and the consummation of a sale by his principal, such as a breaking off of negotiations or the activities of competing brokers, which impelled a decision that the plaintiff broker had failed to establish a cause of action. These and many other cases we have studied but serve to emphasize the truth of the much repeated statement that each of these cases is dependent upon its own particular facts. So we turn to a consideration of the inferences which triers of the fact might reasonably draw from the facts peculiar to this case.

As background of the events of Friday, April 26, 1957, it should be noted that theretofore plaintiff had devoted time, effort and expense in establishing a market place to which both vendors and purchasers of real property would be induced to resort. It was this preliminary activity of plaintiff which brought both Redlin and Rev. Schumann to that office. These facts suggest that to conclude plaintiff's only contribution toward bringing Redlin and the synod together was the answering of a single telephone call is to ignore an important part of her activities. The direct contribution made by p...