Orr v. Meng

• Decision Date: 03 November 1928
• Docket Number: 28,264
• Citation: 271 P. 293,126 Kan. 723
• Parties: L. V. ORR, Appellee, v. OTTO MENG et al., Appellants
• Court: Kansas Supreme Court

271 P. 293

126 Kan. 723

L. V. ORR, Appellee, v. OTTO MENG et al., Appellants

No. 28,264

Supreme Court of Kansas

November 3, 1928

Decided July, 1928.

Appeal from Kingman district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BROKERS--Right to Commission--Ready, Willing and Able Purchaser--Special Findings. The special findings of fact returned by the jury to the effect that the plaintiff with whom defendants had listed their land for sale had procured a purchaser ready, willing and able to purchase on the prescribed terms, are held not to be inconsistent with the general verdict, are supported by the evidence, and sufficient to show that plaintiff was entitled to her commission.

2. SAME--Right to Commission--Sufficiency of Service. To earn her commission it was enough for her to produce a purchaser ready and able to take the property at the named terms, and it was not incumbent on her to secure the signing of a binding contract of sale between the owners and the purchaser.

3. SAME--Infidelity of Agent--Evidence. The evidence examined and it is held that there was no proof in the case to require an instruction to the jury as to fraud or infidelity of the plaintiff in the transaction.

Charles C. Calkin, of Kingman, for the appellants.

Clark A. Wallace and Paul R. Wunsch, both of Kingman, for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought to recover a broker's commission for finding a purchaser for a quarter section of land owned and occupied by Otto Meng and Helena Meng, his wife. A trial resulted in a verdict and judgment in favor of the broker, L. V. Orr, and defendants, alleging errors, bring the case here for review.

It appears that plaintiff found a purchaser for the land able and willing to buy at the stipulated price. She reported her action to the defendants, and then prepared a contract of sale which was signed by the owners, in which, among other things, it was stated that a down payment of $ 1,000 should be made. Plaintiff then returned to complete the contract with Seifert, the purchaser, who stated that it was not convenient for him to pay more than $ 500 as an advance payment, but further stated that if defendants objected the plaintiff might draw on him for the remaining $ 500; and plaintiff, knowing the defendants for whom she was acting had previously mentioned $ 500 as a sufficient down payment, changed the contract so as to provide for a $ 500 payment, and Seifert signed the contract, which plaintiff deposited in a bank. She tried to communicate with defendants, living some distance away, respecting the change and signing of the contract, and after some delay in reaching them she got in touch with Mrs. Meng, who said her husband was absent, but she would inform him when he returned, and added that she thought it would be all right. The next morning Mr. Meng appeared at plaintiff's office and said that he didn't like the change, and plaintiff replied that the other $ 500 would be put up immediately.

Seifert had stated that if the Mengs were not satisfied with the $ 500 that plaintiff might draw on him for the additional sum. Meng then stated that he and his wife had discussed the matter the evening before, and they had decided not to sell the farm. The additional $ 500 was put up, and the contract, signed by the defendants, was placed in a bank and subsequently placed of record. Considerable testimony was given respecting changes in the contract other than that mentioned, but there was in the testimony sufficient to show that no other substantial changes were made. The defendants refused to carry out the deal and also declined to pay the commission. The jury answered the following special questions that were submitted relating to the transaction:

"3. Did plaintiff procure and cause said George Seifert to become a prospective purchaser of said land to the extent of signing a written contract of purchase therefor? A. Yes.

"4. State what changes, if any, plaintiff made in the written contract signed by defendants on April 5, 1927, at their home. A. Changed $ 1,000 to $ 500.

"5. State whether or not plaintiff was authorized to make such changes by either one or both of said defendants. A. No.

"6. If you answer the above question in the negative, state what changes, if any, plaintiff made without the knowledge or consent of said defendants or either of them. A. Changed $ 1,000 to $ 500.

"7. Was the said George Seifert on April 5, 1927, and for several days thereafter, ready, willing and able to buy said land at the price and on the terms and conditions prescribed by said defendants at the time they signed said written contract? A. Eleven answers yes, and one answered not until the 6th.

"8. Did the defendants give said plaintiff a fair and reasonable opportunity to submit to said George Seifert the price, terms and conditions of sale prescribed by said defendants to said plaintiff after she learned that amount of down payment was unsatisfactory? A. No.

"9. Did plaintiff, at the time she made the changes, if any, in said contract after it was signed by said defendants, honestly believe that such changes were consented to and authorized by said defendants? A. No.

"10. Did plaintiff, at the time she secured the signature of George Seifert on or about the 5th day of April, 1927, know, or have reason to believe, or think that the said George Seifert would execute the contract in the form in which it was when the contract was signed by defendants and placed in the hands of plaintiff, if necessary, to purchase the property? A. Yes.

"11. Did plaintiff exercise her best efforts to induce the said George Seifert to execute the contract in the form in which it was when placed in the hands of plaintiff? A. Yes.

"12. Did defendants on or about April 5, 1927, place a certain written contract bearing their signature in the hands of plaintiff for the securing by her of the execution thereof by one George Seifert? A. Yes.

"13. Did the plaintiff change said contract and secure the signature of the said George Seifert to said contract after changing same? A. Yes.

"14. Did the plaintiff change the contract placed in her hands by defendants without the knowledge and consent of defendants and accept the signature of George Seifert thereto after changing same? A. Yes.

"15. If you find that plaintiff changed the contract from the form it was in when delivered to her and accepted the signature of George Seifert after same was changed, did said defendants after learning of said changes withdraw said property from the market? A. Yes.

"16. Did plaintiff have the full sum of $ 1,000 paid her by Seifert at the time of the discussion with defendant, Otto Meng, on April 6, 1927? A. No; but had authority to draw draft on Seifert for $ 500.

"17. If you find that plaintiff at the time had the full sum of $ 1,000, state whether she then advised the said Otto Meng of said fact. A. Yes; at the close of the second interview with Mr. Meng.

"19. Did plaintiff, upon learning that defendants desired to withdraw said real estate from the market, then seek to place said defendants in such position as to be required to sell and convey said real estate? A. Yes."

Question No. 7 with its answer was withdrawn and stricken out. On the verdict and answers to the other questions, judgment was rendered for plaintiff in the sum of $ 237.20.

Defendants first contend that the court erred in refusing the setting aside of the general verdict on the ground that the findings were inconsistent with it. Error is also assigned on the withdrawal of question No. 7 with the answer thereto and the failure to set aside finding No. 11.

They also complain of instructions given to the jury and of the refusal of some...