Montgomery v. Empey

• Decision Date: 08 February 1927
• Docket Number: 1283
• Citation: 36 Wyo. 37,253 P. 17
• Parties: MONTGOMERY v. EMPEY. [*]
• Court: Wyoming Supreme Court

253 P. 17

36 Wyo. 37

MONTGOMERY v. EMPEY. ^[*]

No. 1283

Supreme Court of Wyoming

February 8, 1927

APPEAL from District Court, Natrona County; R. R. ROSE, Judge.

Suit by Kathlyn Montgomery against Fred E. Empey. Judgment for plaintiff, and defendant appeals.

Affirmed.

Curran & Cobb, John H. Casey, and Frank M. Perkins, for appellant.

Broker's contracts come under the general rule of contracts instruction numbered one is objectionable for prolixity and the assumption of facts not proven at the trial; the same objection applies to instructions numbered two, three, four five and six, none of which are based upon issues in the case; a broker's contract must be predicated on contractural relations between himself and his principal; Lundman v. English, (Okla.) 189 p. 531; Babcock v. Merritt, (Colo.) 27 P. 882; Stevens v Bailey, 42 So. 740; 9 C. J. 116. Under a general denial, plaintiff must prove contract alleged; McCorry v. Wiarda, 149 A.D. 863, 134 N.Y.S. 667; Weinhouse v. Cronin, (Conn.) 36 A. 45; Brooks v. Ass'n., (Utah) 178 p. 589. A broker must be the procuring cause of a sale, in order to recover commission; Wheelan v. Hunt, (Okla.) 133 p. 52. Merely contributing toward the sale does not constitute the broker a procuring cause; Alden v. Earl, 121 N.Y. 686; Crane v. Miles, (Mo. Ap.) 134 S.W. 32; Lord v. Co., 118 N.Y.S. 451; Sexton v. Goodrich, 131 Wis. 146; Rosenfield v. Wall, 109 A. 409; Earp v. Cummings, 93 Am. Dec. 719; 19 Cyc. 261. Procuring cause, means the original discovery of purchaser, starting negotiations, and formal closing of sale on behalf of the principal; Langford v. Issenhuth, (S. D.) 134 N.W. 889; Wood v. Smith, (Mich.) 127 N.W. 277; Shober v. Dean, (Mont.) 102 p. 323; Sibbald v. Co., 83 N.Y. 378. Services rendered gratuitously renders a subsequent promise to pay for them not binding; Allen v. Bryson, 67 Ia. 591, 56 Am. Rep. 358. Finding that an agent was instrumental in causing the sale would not, of itself, entitle him to commission; Kurtz v. Payne, (Ia.) 135 N.W. 1075; Bowers v. Mills, 157 Ill.App. 171. Broker must bring the minds of the purchaser and vendor to an agreement; Naylor v. Ashton, 130 P. 181; Williams Co. v. Kane, 116 N.Y.S. 155. Plaintiff did not have exclusive sale of the property; the owner made the sale without the aid of plaintiff, hence broker was not entitled to commission; Stewart v. Murray, (Ind. 47 Am. R. 167; Shober v. Blackford, (Mont.) 127 p. 329. It is only where an exclusive agency is granted that principal is liable when he makes sale on his own account; Hunter v. Co., (Wash.) 97 P. 494; Hammond v. Mau, (Wash.) 124 P. 377; 4 R. C. L. 318. An agreement to sell to a particular person, does not entitle broker to commission upon sale to another person; Breen v. Rives, 44 N.Y.S. 672. Modification of contract, being a new contract, a consideration is necessary to support it; 13 C. J. 592; Wescott v. Mitchell, (Me.) 50 A. 21. Admission of improper evidence, and undertaking to withdraw it from consideration of the jury, improper; Stephenson v. Jackson, 128 S.W. 1196. The case of Geier v. Howells, (Colo.) 107 P. 255, reported with exhaustive foot notes in 27 L. R. A. (N. S.) 786, is practically on all fours with the case at bar.

James P. Kem, for respondent.

The plaintiff is entitled to recover the commission earned; Friedman v. Suttle, 10 Ariz. 57, 85 P. 726; Viley v. Pettit, (Ky.) 29 S.W. 438; Wolf v. Co., 134 N.Y.S. 491; 1 Page on Contracts, 843; 1141; Duncan v. Borden, (Colo.) 59 P. 60. The court did not err in the admission of evidence; 1. The plaintiff's testimony as to John Huber's statement to the defendant Empey as to his interest in the proposed purchase was admissible against the defendant; 9 Corpus Juris 650; 2. Certain advertisements inserted by the plaintiff in regard to the defendant's property were property admitted; 9 C. J. 647; Ross v. Major, (Mo. App.) 163 S.W. 880; 3. No error can be predicated upon the admission of the testimony of the witness Sternberg, which the jury were instructed to disregard; 38 Cyc. 1348; 4. The plaintiff's testimony as to the statement of the defendant's clerk Schmitt, made in the presence of the defendant, was properly admitted; Sonnentheil v. Co., 172 U.S. 401; 5. The contracts of sale signed by the defendant and Paul Huber were admissible; Cutten v. Pearsall, (Cal.) 81 P. 25; Cannon v. Castleman, (Ind.) 55 N.E. 111; Hull v. Brown, 21 Minn. 163; Folansbee v. Sawyer, (N. Y.) 51 N.E. 994; 6. The rulings of the trial judge on the admission of evidence were correct and proper. The trial court did not err in his instructions to the jury; 1. Instruction No. 1 is unobjectionable; 22 C. J. 126; Longree v. Co., (Mo. App.) 97 S.W. 272; Commonwealth v. Webster, 5 Cushing 295; Wyrick v. Co., (Kan.) 163 P. 1059; 38 Cyc. 1623; Henry Gaus Co. v. Magee Co., 42 Mo.App. 307; 38 Cyc. 1639; 2. There was no error in the other instructions; Wood v. Wood, (Wyo.) 164 P. 844. This court will not, under the law, interfere with the findings of the jury upon questions of fact; Bank v. Henry, (Wyo.) 136 P. 863; Cronberg Bros. v. Johnson, (Wyo.) 208 P. 446; Hjorth Oil Co. v. Curtiss, (Wyo.) 163 P. 362; Feering v. De Wolf, 8 Fed. Cas. No. 4711; Carver v. Louthin, 30 Ind. 530.

RINER, District Judge. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, District Judge.

In November, 1922, the appellant, Fred E. Empey, was the owner of some real estate in the City of Casper, Wyoming, on which were situated certain buildings wherein he kept a stock of general merchandise and transacted business under the name of Exchange Furniture and Hardware Company. Thereafter he sold this entire property and business to one Paul Huber for the sum of $ 76,144.14. Appellee Kathlyn Montgomery was and is a licensed real estate broker with offices also in Casper. This suit was instituted by her against Empey in the District Court of Natrona County to recover of him commission as real estate broker on the amount of the sale price, she claiming that she was employed by Empey to find a purchaser; and that she was the inducing cause which brought the seller and the buyer together and accomplished the sale. A jury trial resulted in a verdict for the plaintiff in the full amount of the commission claimed. The vendor has brought the case here for review on direct appeal. For convenience the appellant will hereafter be referred to as the "defendant," the appellee as the "plaintiff."

Upon the trial the plaintiff testified in her own behalf substantially that in November 1922 the defendant first requested her to find a purchaser for his property and agreed to pay her the regular commission for so doing; that she thereafter advertised the property for sale, so wording the advertisement at defendant's request as not to disclose his identity; that through advertisement John Huber came to plaintiff's office about the latter part of February or the first part of March 1923, stating that he was interested in purchasing a furniture store and that he and his brother Paul Huber were intending to buy a business of this nature together; that at John Huber's request plaintiff made an appointment for him to meet the defendant; that plaintiff and John Huber thereupon proceeded to defendant's place of business and negotiations for a sale were undertaken; that at that time John Huber told defendant that Paul Huber and he were interested in buying a business together and that if they took over the business Paul would be in partnership with him; that John Huber stated to the defendant that he, John Huber, wanted his brother Paul to look at the property and talk with the defendant; that the defendant made an appointment to see Paul Huber the next day or as soon as the latter could come down; that defendant stated it was desirable to have two men in the business as he found it was too strenuous for one man to take care of; that thereafter plaintiff called on the defendant at his store and inquired if Paul Huber had kept the appointment previously made; that defendant replied that Paul Huber was very much interested in the business and that he would not consider dealing with John unless Paul took an interest; that plaintiff asked defendant for an exclusive listing on the property until after the deal was closed, but was told by defendant that he did not wish to give an exclusive listing as he might have an opportunity to sell it himself but that "I will protect you on any kind of a deal that I make with the Huber bunch." The plaintiff also testified that thereafter she made several calls on the defendant and on one of those occasions he stated to her that Paul Huber and he had been up half the night but had not been able to conclude a deal, --the defendant assuring her that if she kept in touch with him he, the defendant, would keep her informed as to how the deal was progressing, and that she did that; that defendant told plaintiff of Paul Huber's effort to finance the deal and that the latter would take the store if he could raise the money but that he did not think he could do so; that defendant told plaintiff at this time that he would do everything that he could and if there was anything else in the matter that plaintiff could do that he would call on her; that plaintiff had several conversations with the defendant before he closed the deal with Mr. Paul Huber, and that the defendant always assured plaintiff that he would pay her the full amount of commission due; that just before the deal was closed plaintiff called on the defendant in his store and was told by the latter that he did expect to close the deal but that he had turned the deal over to his bookkeeper, a Mr. Schmitt, to close; that plaintiff was also told by defendant that he had had a talk with Paul Huber and with Mr. Schmitt before he closed...