Morrill v. Davis

• Decision Date: 30 October 1889
• Citation: 43 N.W. 1146,27 Neb. 775
• Parties: MORRILL ET AL. v. DAVIS ET AL.
• Court: Nebraska Supreme Court

27 Neb. 775

43 N.W. 1146

MORRILL ET AL.

v.DAVIS ET AL.

Supreme Court of Nebraska.

Oct. 30, 1889.

Syllabus by the Court.

In an action by certain real-estate agents to recover commissions on a sale of real estate alleged to have been made by them, the testimony failed to establish a contract of sale, and it was held that they could not recover therefor.

Error from district court, Lancaster county; FIELD, Judge.Harwood, Ames & Kelly, for plaintiffs in error.

Marquett, Deweese & Hall, for defendants in error.

MAXWELL, J.

This action was brought in the district court of Lancaster county upon a petition, the first cause of action in which is stated as follows: “Now come the above-named plaintiffs, and for a cause of action against the defendants say that on March the 30th, 1887, Annie Morrill was the owner of the south-west quarter of section 11, township 10 north, range 6 east of the 6th P. M., Lancaster county, Nebraska. That on said date, and long prior thereto, G. M. Morrill was the agent for the said Annie Morrill, acting for her, with her knowledge and consent, looking after, managing, and controlling said land, the same as though it were his own; and that on the 25th day of March, 1887, the said Annie Morrill employed the said plaintiffs to sell and dispose of the southwest quarter of section 11, township 10, range 6, at $150.00 per acre. That, in pursuance of the instructions received from the said Annie Morrill, they sold the said land on the 30th day of March, 1887, to Mrs. Carrie R. Johnson, for the sum of $150.00 per acre, the purchase price to be paid on any terms that might be satisfactory to the defendants. That the commission on said sale amounts to the sum of $625.00, and the same has not been paid to the plaintiffs by the said defendants. That E. Viola Davis was formerly E. Viola Dowden. That Annie Morrill is the wife of G. M. Morrill.” The second cause of action is for money paid for the use of the defendants below. The answer denies the sale by the plaintiffs, as agent for the defendants, or either of them, of the land in question, and denies that there was any employment of the plaintiffs as such agents, except as follows: “Unless the terms of sale to be submitted to said defendants were by them approved as satisfactory, and no sale was to be consummated or binding on them, [said defendants,] unless the terms of payment were first given and approved. And defendants further aver that an offer to purchase made by said Carrie R. Johnson, through the said plaintiffs, was rejected, and never consummated, because the terms of sale were not satisfactory to said defendants, as the plaintiffs were informed upon the reception of the offer.” The second cause of action, although put in issue by the answer, was admitted on the trial, and no error is assigned with reference to it. A verdict was returned in favor of the plaintiffs upon both causes of action, for the amount claimed.

The proof introduced to show a contract is as follows: First, a letter from G. W. Morrill to Miss E. Viola Dowden, dated March 25, 1887, as follows: “Miss E. Viola Dowden--Dear Madam: I received a letter from Mr. Dowden a short time since, and he desired me to write you if I would sell my farm. I have never intended to sell it, but always expected to occupy it myself; but lately I have been thronged with letters, and several parties have been to see me, asking if I would sell, and I have invariably said, ‘No.’ Yesterday I had another party, who offered me a big figure for it; but, as your father desired, will give you the first chance to sell it. Will say that, if you can sell it for $150 per acre, will take it; or, if you have a proposition, you submit it, and I will consider it. Will delay writing other parties till I hear from you. Please let me know if the trees are all living that were to be set around the place, and if the grove has been set out according to terms of lease. Have thought almost every month for the past year that I would be out there. * * * Resp'y yours, G. W. MORRILL, 110 East 82nd Street, N. Y. City.” On the 29th day of March, 1887, the following dispatch was sent direct to G. W. Morrill, then in the city of New York. “Think can sell at your price, if can make terms one thousand dollars in hand, five thousand in sixty days, balance in three equal annual payments at 8 per cent. Shall I try. Wire at my expense. JOSIE L. DOWDEN.” On the same day, defendant sent the following telegram: “To E. Viola Dowden, Cor. O. & 12th, Lincoln: Will reply by letter. G. W. MORRILL.” This dispatch was received in Lincoln on the following day. On the 31st of March, 1887, defendant wrote: “Miss Dowden--Dear Madam: Your telegram rec'd, but have delayed reply by letter, to see what terms I could make with parties for property which I was contemplating buying;...