Meiners v. Kennedy

• Decision Date: 16 November 1945
• Docket Number: No. 34055.,34055.
• Citation: 20 N.W.2d 539,221 Minn. 6
• Parties: MEINERS v. KENNEDY et al.
• Court: Minnesota Supreme Court

20 N.W.2d 539

221 Minn. 6

MEINERS v. KENNEDY et al.

No. 34055.

Supreme Court of Minnesota.

November 16, 1945.

Appeal from District Court, Ramsey County; Kenneth G. Brill, Judge.

Action by William W. Meiners against Alois D. Kennedy and Marion C. Kennedy to recover a broker's real estate commission. The action was dismissed as to the last-named defendant, and from a judgment for plaintiff, the first-named defendant appeals.

Affirmed.

Richard S. Felhaber, of St. Paul (Gustav A. Larson, of St. Paul, on the brief), for appellant.

B. H. Loftsgaarden, of St. Paul, for respondent.

JULIUS J. OLSON, Justice.

This was an action to recover a real estate commission. As to defendant Marion C. Kennedy, there was a dismissal, so we are concerned only with an appeal from the resulting judgment taken by defendant Alois D. Kennedy, to whom we shall refer hereinafter as defendant.

The case was tried to the court, and these, in substance, are the facts found: That defendant authorized plaintiff to act as his agent in procuring a purchaser of certain real estate owned by him in St. Paul; that, pursuant to the agreement, plaintiff found as purchasers William E. and Dorothy Uhlendorf, husband and wife, "who were willing, able and ready to buy upon the terms proposed by the defendant, and both of them signed a contract of sale, Exhibit D," drawn by defendant with the aid of his attorney; that defendant agreed to pay plaintiff a commission of $3,000, i.e., five percent of the listed sale price, $60,000; that in the contract (Exhibit D) there was a provision that the Uhlendorfs were to execute a note for $3,000 as part of the purchase price; that, as to plaintiff's commission, defendant had the option of paying this amount in cash or he could transfer the note to plaintiff without recourse, but that defendant, "through his own acts, prevented the purchasers from carrying out the terms" of the contract; and that plaintiff performed all the duties required of him as a broker in the sale of the property and consequently he was entitled to recover $3,000 with interest and costs. Upon these findings, judgment was entered. There was no motion for a new trial, nor are there any errors in rulings or proceedings presented by the appeal.

1. In Winning v. Timm, 210 Minn. 270, 271, 297 N.W. 739, we held: "Error, if any, in a ruling on the trial may not be reviewed on an appeal from a judgment if appellant did not take an exception to the ruling on the trial or assign it as error in a motion for a new trial." (Citing prior cases.) So, also, in Potvin v. Potvin, 177 Minn. 53, 224 N.W. 461, we held: "On appeal from a judgment after trial by the court, no motion for a new trial having been made, and no errors in rulings or proceedings at the trial being involved, the questions for review are limited to a consideration of whether the evidence sustains the findings of fact, and whether such findings sustain the conclusions of law and judgment." Cf. Ranum v. Swenson, Minn., 19 N.W.2d 327, 332; 1 Dunnell, Dig. & Supp. § 388a, and cases cited in notes; Minn.St.1941, § 547.03, Mason St.1927, § 9327.

As held in the Potvin case, the questions here for review are limited to a consideration of whether the evidence sustains the findings and, if so found, whether these sustain the conclusions of law and judgment. In the performance of that duty, we have carefully examined the record for the purpose of ascertaining whether there is substantial merit in these contentions of defendant:

(1) "* * * that plaintiff did not fulfill the obligations of his agency, namely, to produce a purchaser ready, willing, and able to buy upon the terms of the defendant, or to obtain from a purchaser a binding contract to purchase on defendant's terms," and

(2) "* * * that even if plaintiff has performed the terms of his agency the trial court erred in assessing his damages in the amount of $3,000.00 and should have assessed some lesser amount to be determined upon the present value of" the $3,000 note mentioned in the contract, Exhibit D.

2. We do not intend, nor is it within our province, to go into an extended discussion of the evidence to prove or demonstrate the correctness of the findings of the...