Monzingo v. Bowers
| Citation | 275 P. 339,135 Okla. 225,1929 OK 103 |
| Decision Date | 05 March 1929 |
| Docket Number | 18870. |
| Parties | MONZINGO v. BOWERS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
"As a general rule, the entire duty of a broker employed to assist in the sale of property, is to find and introduce or report to his employer a person who is willing and able to purchase at the price and upon the terms which the employer has designated, although this rule is to be applied as abridged or extended, in any specific case, by the terms of the contract of employment." Yoder v. Randol and Nix, 16 Okl. 308, 83 P. 537, 3 L. R. A. (N. S.) 576.
And where a broker knows, at the time he is employed to sell certain land, that an undivided one-third interest in the land is owned by a minor, and that the sale of such interest must be made subject to order and approval of the probate court, having jurisdiction of the minor's estate, and the interest is offered for sale through probate court, but the prospective buyer refuses to bid on the interest of the minor in sale proceedings, no sale is made of said interest, and the prospective buyer refuses to complete the purchase because of failure to give complete title within a specified time fixed by him, the broker is not entitled to a commission as for a completed sale.
Commissioners' Opinion, Division No. 2.
Appeal from District Court, Major County; James B. Cullison, Judge.
Action by E. R. Monzingo against Edna Bowers. Judgment for defendant, and plaintiff appeals. Affirmed.
David Bucher and Ernest F. Smith, both of Enid, for plaintiff in error.
John Butler, of Fairview, for defendant in error.
E. R Monzingo, as plaintiff, brought this action against Edna Bowers, as defendant, to recover the sum of $300, alleged to be due plaintiff as a real estate broker's commission. Defendant denied generally the allegations of the plaintiff's petition. A trial was had to the court without a jury, and, at the conclusion of plaintiff's evidence, the court sustained defendant's demurrer thereto, and dismissed the cause. Plaintiff has appealed, and presents only one objection to the judgment of the court that is, that the court erred in sustaining defendant's demurrer to plaintiff's evidence. Plaintiff established that he was engaged in the real estate business in Fairview Major county, Okl., that defendant spoke to him on numerous occasions about selling a farm in Major county, and that on March 2, 1926, defendant specifically employed plaintiff by letter to sell said farm. The letter was offered in evidence and gives the price asked, some of the terms upon which she was willing to sell, and offered to pay a commission of $200, together with an additional $100, if plaintiff would sell the farm by June 1, 1926. Plaintiff thereupon advertised said farm for sale, and interviewed a number of people with a view of securing a buyer. He interviewed one L. B. Reese, who considered the offer favorably. Plaintiff arranged a meeting between defendant and Reese at Enid, Okl., and, after the meeting some time in April, defendant advised plaintiff that she and Reese had agreed on the terms of sale and exchange, and, so far as she knew, the deal would be completed some time in the future. Plaintiff and Reese also testified in response to direct questions that Reese was ready, willing, and able to complete the trade on defendant's terms some time during the month of April, 1926. Plaintiff's petition, as well as his evidence, discloses that defendant owned only an undivided one-third interest in the farm, and that another one-third interest in the farm belonged to defendant's minor child. Defendant was guardian of this minor child. Plaintiff further testified that at the time he was employed to sell the farm he knew that one of the heirs interested in the farm was a minor, but that he did not know that any interest therein would have to be sold with the consent and approval of the probate court, where the guardianship case was pending. The evidence shows that, during the progress of negotiations between and among plaintiff, defendant, and Reese, that plaintiff knew and was informed that the sale of the minor's interest would have to be conducted through the probate court, and the sale made to the highest bidder.
The evidence also shows that plaintiff knew that a proceeding was pending in the proper probate court for the sale of the minor's interest in the land prior to June 1, 1926. The trade not having been closed, plaintiff and Reese on June 1, 1926, went to Winfield, Kan., where defendant lived, to discuss the matter with her. Plaintiff testified that it was agreed at that meeting that defendant would file a bid for Reese on the minor's interest with the probate court in the sale proceeding. At that time a contract in writing was executed for the completion of the sale to Reese by July 1, 1926. That contract was not offered in evidence, and very little of its contents were related by the witnesses.
Reese testified that the original agreement was that the trade would be completed as soon as the probate court would give defendant...
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