Neiderlander v. Starr

• Decision Date: 11 February 1893
• Citation: 50 Kan. 766,32 P. 359
• Parties: N. F. NEIDERLANDER v. JOSEPH STARR
• Court: Kansas Supreme Court

32 P. 359

50 Kan. 766

N. F. NEIDERLANDER v. JOSEPH STARR

Supreme Court of Kansas

February 11, 1893

Decided January, 1893.

Error from Sedgwick District Court.

ACTION by Neiderlander against Starr, to recover his commission for the sale of certain real estate. Defendant had judgment, and plaintiff comes here. The material facts are set forth in the opinion herein, filed February 11, 1893.

Judgment Affirmed.

Edwin White Moore, for plaintiff in error:

George Dold testified that he was acquainted with Jacob Dold's financial condition, and that the latter was able to fulfill the terms of the contract. The courts hold, however, that the burden in such cases is on the vendor, refusing to consummate a sale, to show the lack of ability of the proposed purchaser, if the refusal is upon that ground. It does not appear that the defendant objected to Dold upon such ground nor is there such an allegation in his defense to this action. Solvency is always presumed. The contrary seems to be stated in Stewart v. Fowler, 37 Kan. 677; but not only is this mere dictum in that case, as the point was not raised there, but it is opposed to all other authority on these and similar transactions. In Hart v. Hoffman, 44 HOW Pr. 168, it is held, that if insolvency be relied upon, it must be pleaded and proven as a defense. The same rule is laid down in Cook v. Kroeneke, 4 Daly, 268. If the contract had been fulfilled, and the mortgages and deed placed in escrow, to be delivered in February, 1889, upon the performance by Dold of the further conditions required to be performed by him at that time, the case of Stewart v. Fowler, supra, might be pertinent.

The courts have uniformly held, that the agent having performed his duty, he could not be deprived of his commissions by the capricious refusal of the vendor to sell, without fault of the agent. In Frazer v. Wychoff, 63 N.Y. 445, the court says:

"A broker for the sale of real estate is entitled to his commissions when, in the language of the cases, 'he is the procuring cause of the sale;' that is, when he has found a purchaser and brought him to his employer, and a contract is made between them."

See also, Mooney v. Elder, 56 N.Y. 242; Willes v. Smith, 77 Wis 81; Gillett v. Corum, 7 Kan. 156; McGarock v. Woodlief, 20 HOW 221; Bailey v. Chapman, 41 Mo. 537; Monroe v. Snow, 131 Ill. 126; Scribner v. Hazeltine, 79 Mich. 370; Stewart v. Mather, 32 Wis. 349; Kock v. Emmerling, 22 HOW 69; Neilson v. Lee, 60 Cal. 555; Phelan v. Gardner, 43 id. 306; Moses v. Bierling, 31 N.Y. 461.

Upon this last employment of the plaintiff by the defendant, the plaintiff is entitled to recover, if by his procurement Dold was ready and willing to make the purchase on the defendant's terms, and the defendant, without plaintiff's fault, refused to sell the land. See Betz v. Land Co., 46 Kas 45.

Stanley & Hume, for defendant in error:

All that Neiderlander did was to procure Dold, the alleged purchaser, to enter into a contract with Starr, which contract is identical in meaning and interpretation with the contract construed by this court in the case of Stewart v. Fowler, 37 Kan. 677. The supreme court held that the instrument in Stewart v. Fowler, supra, was a contract of sale, and not a sale itself. We submit that the instrument executed by Starr and his wife to Dold is in itself simply a contract of sale and not a sale. In Stewart v. Fowler, supra, the law is declared as follows:

"Where a contract for a commission for the sale of land provides that the land must be sold to a person ready, willing and able to buy, it is not enough that there has been a contract to sell made. There must have been a sale before the commission is earned."

The plaintiff seems to be dissatisfied with the law as declared in Stewart v. Fowler; but we are satisfied with the same, and this court seems to be satisfied with it, for such doctrine was followed in the case of Betz v. Land Co., 46 Kan. 45.

STRANG, C. All the Justices concurring.

OPINION

STRANG, C.:

Action on contract for $ 400, alleged by the plaintiff to be due and owing to him from the defendant as a commission on the sale of real estate. The plaintiff introduced his evidence and rested. The defendant demurred to the evidence, and the demurrer was sustained by the court. The plaintiff brings the case to this court, and alleges that the trial court erred in sustaining the demurrer to his evidence; and that is the only question before this court. The plaintiff's evidence showed that he had the farm of the defendant on his books for sale; that Jacob Dold wanted to buy a farm, and Neiderlander and one of his men showed Dold several farms for sale, and among others they took him to see the Starr farm. Starr and wife were not at home, but their sons showed the farm, and as Neiderlander and Dold were returning to Wichita, they met Starr and wife. Neiderlander informed them he had been showing Dold their farm, and Starr said he would call at Neiderlander's office next day and see them. When he called next day, they talked the matter over. Starr at first wanted $ 16,000 for the farm, but finally agreed to take $ 15,000, and also agreed to pay Neiderlander $ 400 commission for selling the land at $ 15,000. A few days after a contract was drawn up and signed by Dold, and also by Starr and...