Owens v. Mountain States Telephone & Telegraph Co.

• Decision Date: 24 November 1936
• Docket Number: 1952
• Parties: OWENS v. MOUNTAIN STATES TELEPHONE & TELEGRAPH COMPANY
• Court: Wyoming Supreme Court

63 P.2d 1006

50 Wyo. 331

OWENS v. MOUNTAIN STATES TELEPHONE & TELEGRAPH COMPANY

No. 1952

Supreme Court of Wyoming

November 24, 1936

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by W. H. Owens, doing business under the style and firm name of W. H. Owens Realty Company, against the Mountain States Telephone & Telegraph Company. From a judgment for the plaintiff, the defendant appeals.

Reversed and Remanded.

For the appellant, there was a brief by C. R. Ellery and Bard Ferrall, both of Cheyenne, and oral argument by Mr. Ferrall.

The trial court erred in overruling defendant's demurrer and motion for a directed verdict. Eberlin v. Ass'n., (N D.) 226 N.W. 810; Refining Company, 48 So. 987; King v. Mfg. Company, 222 N.Y.S. 66; Ebner vfl Church, 282 S.W. 785; Gray v. Wood, (Ala.) 127 So. 148; McEwen v. Hoffman, et al., 85 N.E. 364; Boiardi v. Marden & Hastings Corp., 185 N.Y.S. 331; Farquharson v. Lightner, 150 P. 565; Brown v Gilpin, (Kan.) 90 P. 267; Erswell v. Ford, (Ala.) 88 So. 429; Howard v. Sills & Purvis, 114 S.E. 580; Wright & Kimbrough v. De Wees, (Cal.) 197 P. 957; Aukerman v. Bremer, (Texas) 209 S.W. 261; Price v. Cocke, (Ga.) 99 S.E. 47; Merkeley v. Fisk, (Cal.) 178 P. 945; Westerman v. Inv. Co., (Mo.) 195 S.W. 78; Battle v. Price, 72 F.2d 377; Wilson v. Gibbs, (Iowa) 160 N.W. 325; Murphy v. Livestock Company, 26 Wyo. 455; 4 R. C. L. 336. The verdict and judgment are not sustained by sufficient evidence and are contrary to the evidence and to law. Grant v. Dalton, (Me.) 114 A. 304, 305; Bodine v. Penn Lumber Company, (Ark.) 194 S.W. 226; Peter & Company v. Fix, (Ky.) 7 S.W.2d 1040; Pagum v. White, (Mass.) 156 N.E. 711; Good v. Robinson, (Mo.) 184 S.W. 955; Price v. Cocke, (Ga.) 99 S.E. 47; Westerman v. Inv. Company, (Mo.) 195 S.W. 78; Realty Company v. Silcox, (Mich.) 160 N.W. 465; Burbaugh v. Lawson, (Ark.) 47 S.W. 591; Howard v. Street, (Md.) 93 A. 923; Gardner v. Pierce, 116 N.Y.S. 155. The trial court erred in its instructions to the jury and in refusing to give instructions requested by defendant. Instructions numbered two and three given by the court, advised the jury that the only substantial issue in the case was whether or not plaintiff had been the procuring cause of the sale to Arp. Plaintiff's own testimony indicated that if he had any contract at all, it was a special contract, in which the property was listed with him from the first part of March to the latter part of March, for sale at a price of $ 25,000 net to the company. The instructions requested by defendant and refused were submitted upon the theory that the evidence established that if plaintiff had any contract at all, it was a special contract, giving plaintiff from the first part of March to the latter part of March, within which to sell the property at a price of $ 25,000 net to the defendant company; that he did not produce a purchaser ready, willing and able to pay said purchase price during the time his contract was in effect; that after his contract expired, the defendant company listed the property with Riner & Company at the price of $ 25,000, and agreed to pay a commission of 5% on said list price; that the sale to Arp for $ 15,000 did not take place until some five months after plaintiff's contract had expired and after the property had been listed with Riner & Company, and that under such circumstances, plaintiff was not entitled to recover unless the evidence established that the defendant company had rejected the Arp offer of $ 15,000 made through plaintiff in bad faith and for the purpose of avoiding the payment of any commission to him. The court erred in refusing to give these instructions either in the form requested or in substance.

For the respondent, there was a brief by James A. Greenwood and W. O. Wilson, both of Cheyenne, and oral argument by Mr. Greenwood.

Plaintiff alleged far more in his petition than was essential. Bancroft's Code Pleading, Vol. 2, p. 1630, Sec. 1070. Plaintiff's contract, as shown by the petition, as amended, was an oral one and alleged that plaintiff was employed by defendant as a broker to obtain a purchaser, and that defendant listed the property with plaintiff for that purpose; also that defendant agreed to pay plaintiff for his services in producing a purchaser, the reasonable value thereof, which was alleged to be $ 750.00, and that plaintiff demanded that sum from the defendant. The appellant's theory appears to be based upon the case of Murphy v. Livestock Company, 26 Wyo. 455. The Murphy case is authority for respondent. That case supports the principle that covers broker's contracts, and the court cites the case of Frost v. Houx, et al., 15 Wyo. 353. Defendant in the Murphy case met the allegations of the petition by alleging specific conditions, which if established, took the transaction outside of the realm of a brokerage agreement and made it a special agreement to render services upon stated terms that were not complied with and, therefore, plaintiff was not entitled to compensation. In this case the appellant elected to stand on a general denial, which narrowed the issue to the question of the existence of a broker's agreement. This issue was determined by the jury in favor of the respondent. Under the circumstances, the principle, many times recognized by this court, is to the effect that where there is substantial testimony in support of a verdict of a jury or a judgment of court, notwithstanding it may be contradicted by other testimony, the appellate court will not disturb the verdict or judgment. Land & Inv. Company v. Jensen, 20 Wyo. 323; Phelan v. Brick Company, 26 Wyo. 493; Wakefield v. Lord, 38 Wyo. 301. Our own court justified the verdict of the jury when the fact is found that the broker is the procuring cause and is entitled to his commission. Frost v. Houx, et al., supra, Montgomery v. Empey, 36 Wyo. 37; Griffin v. Rosenblum, 46 Wyo. 40. The most that the evidence shows in support of appellant's contention is that the original conversation between Mr. Titus and the respondent was that the price desired by the appellant was $ 25,000. If that was the only conversation, it would not have been sufficient to defeat respondent's contention, if he was the procuring cause of the sale made; but other conferences were had with Mr. Titus and Mr. Ayersman. Appellant claims Mr. Wallick to have been the procuring cause in obtaining the $ 15,000 offer, and told the jury so, but the jurors did not believe it. They concluded that the respondent was the man who produced that offer and was the procuring cause of the sale. The price paid by Arp was the exact price he offered through respondent. The $ 500.00 down payment was paid by him to the respondent. The instructions objected to by appellant were correct under the law as pronounced in the Murphy case. Appellant objected to these instructions on the ground that respondent's employment was under a special contract and not a broker's contract, but appellant did not elect to so allege in its answer, as was done in the Murphy case, but left the question to the jury, and the jury found that respondent had rendered services under a broker's contract as the procuring cause of the sale. Appellants position does not fit the facts in the Murphy case. It was not entitled to instructions relating to a special contract without having alleged and proven the terms of such a contract to be in fact the agreement between respondent and appellant. The authorities cited by appellant are not in point. It cannot be contradicted that the terms of sale were satisfactory, because a sale was made at the price offered by the purchaser through respondent, who was then authorized to submit any offers that he considered reasonable to the appellant. The exceptions taken to the petition are not in point. Appellant attempted to show, without pleading, that the contract in effect was a special contract rather than the ordinary broker's contract, which this court defined in the Frost case, where a special contract was pleaded. A special contract not having been pleaded in appellant's answer, there was no issue upon which the jury could determine whether respondent was employed under a broker's contract or under a special contract. Respondent produced a purchaser ready, able and willing to purchase, and who did purchase the property for a price which the appellant accepted. The jury therefore found that respondent was the procuring cause of the sale. Erswell v. Ford, 88 So. 429, cited at page 11 of appellant's brief, holds that to entitle a broker to commission, he must show that he procured a purchaser who was ready, able and willing to comply with the terms and conditions of sale. Respondent did that. Howard v. Sills & Purvis, 114 S.E. 580, cited in appellant's brief, support respondent's case, and also the case of Wright & Kimbrough v. DeWees, et al., 197 P. 957. Other cases cited in appellant's brief are not in point when the facts in the present case are considered. It is not disputed that during the period of time that the respondent had a listing, appellant knew he was soliciting offers and attempting to produce a purchaser that would pay an amount which the appellant would accept. Appellant authorized respondent to submit any offer that he considered reasonable and respondent did so, resulting in a sale for an amount acceptable to appellant.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action by the plaintiff W. H. Owens to recover from the defendant his commission on the sale of certain real estate of the defendant in the city of Cheyenne to one John C. Arp. Aside from admitting that John C. Arp purchased the property, the answer is a general denial. The case was tried to a jury, who...