Montross v. Eddy
| Decision Date | 22 December 1892 |
| Citation | 53 N.W. 916,94 Mich. 100 |
| Court | Michigan Supreme Court |
| Parties | MONTROSS v. EDDY et al. |
Error to circuit court, Saginaw county; JOHN A. EDGET, Judge.
Action by Benjamin N. Montross to recover for services rendered in selling land for Charles K. Eddy and Walter S. Eddy. Judgment for plaintiff. Defendants appeal. Affirmed.
Wisner & Draper, for appellants.
George W. Weadock, for appellee.
The plaintiff is a commission dealer in lands, and he brings this suit for services which he claims to have performed for the defendants, in assisting them about the sale, for $90,000, of some pine timber lands, to Pitts & Cranage, of Bay City Mich. The plaintiff claims that in 1885 he had this same land for sale at $50,000, and that, being in Bay City in September, 1887, a Mr. Burton, who knew of this fact and who represented Pitts & Cranage, asked him if the lands in question had been sold, to which he responded that he did not know. Upon which, Mr. Burton asked him to find out, and plaintiff told him he would do so. That thereupon he went to Saginaw, and met Walter S. Eddy, the junior member of the firm of C. K. Eddy & Son, the defendants, and owners of the timber, where the agreement was made upon which the plaintiff claims the right to recover. The conversation, as shown by his testimony in the record, was as follows: "I came from Bay City, and met Mr. Eddy right below Moore's drug store. I asked him if that timber on Hope creek-we called it the 'Hope Creek Timber'-was for sale yet, and he said, 'Yes.' I said, And I said, 'What do you hold it at now?' He said, 'Ninety thousand dollars.' I said, 'I don't believe I can do anything with it.' I said, He said he would not take any less for it. I said, 'Say eighty thousand, and I will try and sell it.' No, he would not take that. I said, 'Say eighty-five thousand dollars, and I will try.' He said no; he would not take less than ninety thousand dollars. Well, I said, if that was the best he could do, I had no thought I could sell it,-I didn't believe I could sell it for ninety thousand dollars. He said he would not take any less. I said, 'Would I, then, be getting the usual commission, if I sell at ninety thousand?' He said, No; you must get your pay from the other party.' I said, 'I wouldn't ask them for it.' I said, 'You know I had it for sale, and I wouldn't ask them to pay a commission on ninety thousand.' He said, 'We don't want to pay any commission.' I said, 'I won't undertake it;' and he turned to go away from me, and he said, 'Ben, if you make the sale, we will expect to pay you for it.' I said, 'All right.' I told him they were gilt-edged parties, and he would be perfectly well satisfied with the parties when he knew who they were. I said they would make a payment down, and they were gilt-edged parties. Question. What did he say? Answer. He said that would be all right." After this talk the plaintiff went to Bay City, and told Pitts & Cranage what the purchase could be made for, and they sent a man with him to examine the pine growing upon the land and ascertain its amount and value. After four or five days spent in making the examination and estimate, it was reported to Pitts & Cranage, and about September 27, 1887, they concluded the purchase of the land from the defendants at the sum of $90,000. Pitts & Cranage then gave the plaintiff $500 for the services he had performed for them in respect of the purchase. Pitts & Cranage claim that the $500 was given the plaintiff in payment for his services, while the plaintiff insists that it was a mere gift, and was not in any way to be considered as a payment; but, in the view we take of the case, we do not consider that this is of any importance. On the day the sale was consummated, the plaintiff went to the office of the defendants, in Saginaw; and after a consultation with each other they gave him their check for $250, and the plaintiff asked them, "Is that all for selling that land?" And Walter S. Eddy, one of the defendants, answered, "That is all we will pay you now." After this time the plaintiff again asked them for money, and was answered that they had no money to spare. That again, in September, 1888, he asked the same defendant for more money, when he was answered that defendants were hard up. Upon giving his note, however, for 60 or 90 days, the defendants gave him their check for $100, at which time he was told that they did not want him to come for any more money. The plaintiff claims that he was never asked to pay this note, although the defendants claim they sent him a letter asking him for it, and that the plaintiff had promised to pay the $100 note subsequent to its maturity. There was no other demand made by the plaintiff for the claim in controversy until shortly before this suit was begun. The defendants deny that they ever employed the plaintiff to sell their land, or that they promised to pay him anything for the sale, and claim that Pitts & Cranage employed the plaintiff to buy the land, and agreed to and did pay him for his services, and that plaintiff so informed the defendants. They also claim that they were never asked by plaintiff for compensation only shortly before bringing this suit, and that the $250 they paid the plaintiff was a gratuity from them; that they were under no...
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