Murphy v. W. & W. Livestock Company

• Decision Date: 03 February 1920
• Docket Number: 974
• Parties: MURPHY v. W. & W. LIVESTOCK COMPANY
• Court: Wyoming Supreme Court

187 P. 187

26 Wyo. 455

MURPHY v. W. & W. LIVESTOCK COMPANY

No. 974

Supreme Court of Wyoming

February 3, 1920

Rehearing Denied May 13, 1920, Reported at: 26 Wyo. 455 at 471.

ERROR to the District Court, Park County; HON. P. W. METZ, JUDGE.

Action by W. W. Murphy against the W. & W. Live Stock Company to recover a broker's commission for negotiating a sale of property. There was a verdict and judgment for defendant and plaintiff brings error.

Affirmed.

R. B Landfair, for plaintiff in error.

The action was for a recovery of a broker's commission for finding a purchaser for lands and livestock; the vendor is entitled to reasonable time to investigate the financial standing of an intended purchaser (Smith v. Penn, 151 Ill. 155, 9 C. J. 600); the amount of plaintiff's commission and the fact that he found a purchaser was undisputed. Having found a purchaser, ready and willing to buy, plaintiff's commission was payable at once (Oudluhan v. Baldwin, 11 Cal. 648, 35 P. 310; Pape v. Wright, 116 Ind. 502, 19 N.E. 459; McFarland v. Lillard, 2 Ind.App. 160, 28 N.E. 229; Teeford v. Brinkerhoff, 45 Ill.App. 586; Gelatt v. Ridge, 117 Mo. 553, 23 S.W. 882; Cheatham v Yarborough, 90 Tenn. 77, 15 S.W. 1076; Lunney v. Healey, 44 L. R. A. 593); where vendor has made a contract for sale to a person produced by the broker, the solvency and ability of the purchaser to perform the contract will be presumed (Goss v. Brown, 31 Minn. 484; Grosse v. Cooley, 32 Minn. 188; Hart v. Hoffman, 44 How. Pr. 168; Crewier v. Stephens, 40 Minn. 288; Cook v. Kronmeke, 4 Daly, 468; Nichols v. Jones, 23 Nebr. 813; Butler v. Kennard, 23 Nebr. 357; Potvin v. Currin, 13 Nebr. 303; Blakeslee v. Erwin, 40 Neb. 134; Holden v. Stark, 159 Mass. 503; Heaton v. Edwards, 90 Mich. 500, 9 C. J. 596; Wray v. Carpenter, 16 Colo. 271, 37 P. 248), and failure of the purchaser to carry out the contract will not deprive the broker of his commissions (Lunney v. Healey, 44 L. R. A. 593; Wray v. Carpenter, 16 Colo. 271, 27 P. 248); the broker is not an insurer of the purchaser's ability (Payne v. Ponder, 139 Ga. 283, 77 S.E. 32); where the vendor accepts a person presented as a purchaser and enters into an enforceable contract of sale with him, the broker is entitled to his commission (Scully v. Williamson (Okla.), 108 P. 395, 27 L. R. A. 1089); this is especially true if the vendor retains purchase money paid, and does not rescind (Meyer v. Land Co., 126 Minn. 409, 148 N.W. 452; Mayhew v. Brislen, 108 P. 253); where a principal fixes a net price, the broker to receive all he gets over that sum, he is entitled to a payment of commission on a sale of all over and above the amount fixed as net (Church v. Dunham, 14 Ida. 776, 96 P. 203), and he is entitled to payment out of the first payment (Young v. Ruhwedel, 119 Mo.App. 231, 95 S.W. 228; Yoder v. Randol, 83 P. 537); where no terms of sale are mentioned, and seller sells property, his agent is entitled to commission (Frost v. Houx, 15 Wyo. 353); the court should have rendered judgment for plaintiff on his motion (Calkins v. Mining Co., 25 Wyo. 409); instruction No. 2 is erroneous. The court erred in refusing instructions offered by plaintiff designated "A" to "L", inclusive; the court fairly instructed as to plaintiff's theory, but not wholly as to defendant's theory of the case and this was error; plaintiff was entitled to instructions defining the whole law as to brokers, applicable to the facts of the case.

C. H. Harkins and H. C. Brome, for defendant in error.

The evidence clearly disclosed a misunderstanding as to the terms of the agreement between plaintiff and defendant and the conduct of plaintiff indicated that he did not believe he was entitled to commissions until defendant had received the full sum of $ 30,000, being the net price fixed for the ranch; the acts of the parties amounted to a construction placed upon the agreement by themselves and such construction should be adopted by the court (9 Cyc. 589; Hopkins v. Settles, 149 P. 890); under a contract by which a broker's commission is limited to the excess of the purchase price over a net price to the owner, there is no liability for commission where the purchaser procured is unable to perform the contract of purchase (Martinson v. Hensler, 157 N.W. 714; Robinson v. Ins. Co. 155 P. 202; Ford v. Brown, 120 Cal. 551, 52 P. 817; Fountain v. Pearson, 201 F. 324); where the seller has no acquaintance with the proposed purchaser and the broker presents him for the purpose of making an executive contract there is an implied warranty that he has ability to make the purchase (Butler v. Baker, 17 R. I. 582; Iselin v. Griffith, 62 Iowa 668); the record does not properly present any question with reference to the giving or refusing of instructions for review by this court; a general assignment relating to a number of special instructions must be overruled if any one was properly given or refused (Dickenson v. State, 18 Wyo. 440); there was evidence to sustain the verdict and the judgment should be sustained.

BLYDENBURGH, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

BLYDENBURGH, JUSTICE.

The plaintiff in error, Murphy, brought this suit in the court below to recover from the defendant in error, W. & W. Live Stock Company, a corporation, five thousand five hundred and fifty dollars alleged to be due as commissions for finding a purchaser for certain ranch lands, leases and sheep. The case was tried to a jury, which returned a verdict for the defendant, upon which judgment was rendered, and plaintiff brings this proceeding in error.

The plaintiff's amended petition contains two causes of action, in the first alleging "that ever since on or about the 15th day of October, 1918, there has been due him from the defendant the sum of five thousand dollars ($ 5,000.00) with interest thereon at 8% on a contract entered into between the plaintiff and defendant whereby on or about the 23rd day of September, 1918, it was agreed by the defendant with the plaintiff that if the plaintiff would find a purchaser for certain ranch lands of defendant's being about 560 acres near Big Trails, Wyoming, together with the leases on about 2,000 acres of land in the same vicinity thereof, at the price of thirty-five thousand dollars ($ 35,000), then the defendant would pay the plaintiff the sum of five thousand dollars ($ 5,000.00). That the plaintiff produced a purchaser ready, willing and able to pay the price fixed and on or about the 15th day of October, 1918, terms of sale were agreed upon between defendant and said purchaser, one Fred Eberhard, and an enforceable contract executed between them for the sale of the said land and leases and under the terms of said contract the defendant received and retained the sum of ten thousand dollars cash at the time of the execution thereof from said purchaser, Eberhard; when, at which time, the sum of five thousand dollars became due and payable to plaintiff from defendant; yet defendant, though requested, has not paid any part thereof."

The second cause of action is in the same general language except it is alleged that the plaintiff was to find a purchaser for certain sheep at $ 17 per head; that he did produce a purchaser for 2,200 head of sheep ready, willing and able to purchase the same and that defendant agreed with plaintiff that 25c per head was a reasonable commission therefor. The defendant answered the first cause of action first by a general denial and then after admitting its corporate existence alleged in substance that the plaintiff stated to defendant that he had a purchaser for defendant's ranch lands near Big Trails, Wyoming, and for a band of breeding ewes kept on or near said ranch and inquired what commission defendant would be willing to pay plaintiff if said purchaser should be induced by plaintiff to purchase and pay for said property. That defendant advised plaintiff that it was willing to sell said ranch property for $ 30,000 and said sheep for $ 17.00 per head, and that defendant would not pay any commission at the price named and if plaintiff procured a purchaser at the price named he must obtain any commissions for his services from such purchaser. That thereupon plaintiff represented he had a purchaser who would pay $ 35,000 for the ranch, $ 17.00 per head for the sheep, and thereupon defendant agreed with plaintiff if plaintiff produced a purchaser who would purchase and pay for the property at the prices named then the plaintiff should receive the sum of $ 5,000, the difference between the price for which plaintiff was willing to sell and the price plaintiff represented the purchaser produced by him would pay therefor. Then it is alleged the plaintiff represented that the proposed purchaser was one Fred Eberhard, and that he was financially responsible and possessed money and credit sufficient to enable him to purchase said property and pay defendant the purchase price thereof. That on Oct. 15, 1918 a contract was entered into between the said Fred Eberhard and the defendant for the purchase of said ranch, sheep and certain personal property on said ranch, by the terms of which Eberhard was to pay $ 35,000 for the ranch, $ 17.00 per head for the sheep and $ 5,500 for the other personal property, $ 10,000 to be paid, and was paid, at the signing of the agreement, and the balance to be paid and possession to be given on or before Dec. 1, 1918. That at the time of entering into the contract of sale the defendant had no knowledge of the financial responsibility of Eberhard other than the representations of plaintiff and that it relied upon the information furnished by plaintiff in that respect. That said statements of plaintiff respecting Eberhard's financial responsibility were false and untrue and he was not...