Paulson v. Reeds

• Decision Date: 01 March 1918
• Docket Number: 1915
• Citation: 167 N.W. 371,39 N.D. 329
• Court: North Dakota Supreme Court

167 N.W. 371

39 N.D. 329

MARTIN PAULSON, Respondent, v. J. A. REEDS, Appellant

No. 1915

Supreme Court of North Dakota

March 1, 1918

Rehearing denied April 9, 1918.

Appeal from District Court of Richland County, A. T. Cole, J.

Reversed.

Reversed and remanded.

W. S Lauder, for appellant.

It is the law that where a party sues on an express contract he cannot recover on an implied contract, nor on a quantum meruit. 9 Cyc. 749 et seq., Wernli v. Collins (Iowa) 54 N.W. 364; Morrow v. Board of Education (S.D.) 64 N.W. 1126; Ball v. Dolan (S.D.) 114 N.W. 998; 2 Enc. Pl. & Pr. 990.

The gist of appellant's entire contention is that if respondent furnished to the appellant a buyer who was ready able, and willing to buy the land on the terms of the listing contract, and this appellant so sold his land, or arbitrarily refused to accept such buyer and sell, then respondent could recover. If no such buyer was furnished by respondent, and sale was not made under the listing contract, then respondent cannot recover upon some other theory. 21 L.R.A.(N.S.) 935; 29 L.R.A.(N.S.) 533; 34 L.R.A.(N.S.) 1050; 139 Am. St. Rep. 225; 2 Hill's Dig. (Dakota) pp. 174-177; Ward v. McQueen, 13 N.D. 153, 100 N.W. 253.

Under the listing contract, plaintiff was to procure a purchaser ready, willing, and able to buy the land on certain definite, stated terms, and that he did not furnish such a purchaser; that the purchaser he did furnish refused to buy on the terms specified in the listing contract. Anderson v. Jorgenson, 16 N.D. 174; Ames v. Le Mont, 107 Wis. 231; McArthur v. Slauson, 53 Wis. 41; Ball v. Dolan, 18 S.D. 558; Milligan v. Owens, 123 Iowa 285; Wenks v. Hazzard (Iowa) 123 N.W. 1099.

He, the broker, was not entitled to commissions for furnishing a purchaser at a less price or upon less advantageous terms to the landowner than those stated in the listing contract. Cook v. Forst, 116 Ala. 396; Steinfield v. Strom, 31 Misc. 167; Reiger v. Bigger, 29 Mo.App. 428; Anderson v. Jorgenson, 16 N.D. 174; Williams v. McGraw, 52 Mich. 480; Crombie v. Waldo, 137 N.Y. 129; Rake v. Townsend (Iowa) 102 N.W. 499; Monson v. Kill, 144 Ill. 248; Stautenburgh v. Evans (Iowa) 120 N.W. 59; Pepsen v. Morohn (S.D.) 119 N.W. 988; Morill v. Davis, 27 Neb. 775; O'Brien v. Gilland, 4 Tex. Civ. App. 40; Mullenhoff v. Gensler, 15 N.Y.S. 643; Harwood v. Triplett, 34 Mo.App. 273; Smith v. Allen, 101 Iowa 608; Oliver v. Sattler, 233 Ill. 536; Gough v. Coffin (Tex.) 120 S.W. 210; Stearns v. Jennings, 128 Wis. 379; Everman v. Herndon, 71 Miss. 823; Am. & Eng. Enc. Law, 434; 9 C. J. 597 et seq. and cases cited under note 6, p. 588; Beers v. Schallern (N.D.) 161 N.W. 557.

The question of imagined justice or fairness and that in any event something is due plaintiff for his part in the transaction, is not involved in this lawsuit. Plaintiff predicates his suit and his right to recover upon an express contract, and the only question presented is, Did plaintiff perform according to such specific contract? Ferguson v. Willard, 116 C. C. A. 406, 196 F. 370; Johnson v. Virginia-Carolina Lumber Co., 89 C. C. A. 632, 163 F. 249; Cook v. Forst, 116 Ala. 395; Van v. Pelot, 55 Fla. 357; Jones v. Adler, 34 Md. 440; Williams v. McGraw, 52 Mich. 480; Antisdel v. Canfield, 119 Mich. 229; Brown v. Adams (R. I.) 69 A. 601; Ball v. Dolan, 21 S.D. 619; Largent v. Storey (Tex.) 61 S.W. 977; Terry v. Bartlett, 153 Wis. 208, 140 N.W. 1133; Bridgeman v. Hepburn, 13 B. C. 389; Hughes v. Dodd, 164 Mo.App. 454; Trickey v. Crowe, 8 Ariz. 176; McArthur v. Slauson, 53 Wis. 41; Ryan v. Page, 134 Iowa 60.

Wolfe & Schneller, for respondent.

This action is not based upon the listing contract made at the time the lands were first listed with plaintiff for sale. The facts show that later on plaintiff procured a purchaser; that then defendant agreed with plaintiff that plaintiff shall have and retain as his commissions all over and above a certain amount; that the lands were sold to this purchaser so procured and furnished by plaintiff for an amount $ 1,200 in excess of the net sum stated and agreed to be accepted by defendant and actually accepted by him. The actual agreement under which all parties acted was oral and therefore could be modified orally, or by acts or conduct. Sunshine Cloak & Suit Co. v. Roquette Bros. 30 N.D. 143.

BIRDZELL, J. ROBINSON, J. (concurring). GRACE, J. (dissenting).

OPINION

BIRDZELL, J.

This is the third appeal in an action wherein the plaintiff sues to recover commissions upon the sale of 800 acres of land. Upon the first appeal (Paulson v. Reeds, 24 N.D. 211, 139 N.W. 1135) the respondent confessed error which resulted in the reversal of a judgment for $ 700 in his favor. Upon the second appeal the judgment was for $ 1,200, which judgment was reversed for error in instructions to the jury (Paulson v. Reeds, 33 N.D. 141, 156 N.W. 1031). The facts necessary to an understanding of the case have been previously stated, and it is not necessary to restate them in extenso. Sufficient facts will be stated, however, in connection with the discussion of the instructions given by the trial court, to demonstrate wherein the instructions are erroneous.

However strong the disinclination may be to reverse a judgment based upon the third favorable verdict of a jury, the duty to do so is nevertheless incumbent upon the court when the error is clear and its prejudicial effect obvious. The error in this case is of that sort, as will readily appear from an examination of the charge to the jury. The charge of the court was in part as follows:

"If the plaintiff and the defendant in this case entered into a contract for the sale of the defendant's land, and you so find from the evidence, if you also find that defendant signed exhibit 'A', wherein it is stated that he will take $ 16 an acre net for the lands in question, I charge you that said exhibit is not of itself and standing alone a contract between the plaintiff and the defendant, fixing or determining the right of the plaintiff to a certain and definite commission or compensation for negotiating a sale but if you find in fact it was signed by the defendant, and he knew what he was signing, it constitutes a link in the chain of evidence whereby plaintiff seeks to establish the contract alleged between himself and the defendant, not only for the sale of the lands in question, but a link in the chain of evidence seeking to establish and prove the compensation or commission which plaintiff was to receive for his services as a land broker and an agent for the defendant.

"In order for the plaintiff to recover in this action the minds of the parties must have met upon the proposition of the plaintiff acting as agent or broker for the defendant, and their minds must also have met upon the matter of paying a commission to plaintiff, and as to that matter their minds must have met upon the proposition of the plaintiff receiving as a commission all above the sum of $ 16 per acre received through the sale of the lands in question, as the plaintiff rests his case upon an express contract founded upon such claimed agreement. . . .

"Among other matters to be weighed and considered by you in making up your verdict, is the question of whether or not there was a variation from the terms of sale as claimed to have been stipulated by the defendant to the plaintiff in permitting the plaintiff to try to effect a sale of the lands in question, and if there was a variance in the sale that was made from the terms originally stipulated and agreed upon between plaintiff and defendant, you must further find before you can find a verdict for the plaintiff, that the defendant understood and had his attention called to such variance, and that he accepted and adopted the same while still permitting the plaintiff to act as his agent and broker. . . .

"If you find from the evidence that the contract claimed by the plaintiff was not entered into and agreed upon by and between plaintiff and defendant, in other words, if you find that at no time did the minds of the parties to this action meet upon the proposition alleged by plaintiff, to wit, that the defendant was to have a net price of $ 16 per acre, and the plaintiff to have all received above that as his commission, and it is agreed between the parties here that the land sold for $ 17.50 an acre, then you would find a verdict for the defendant. If you should find, however, that the agreement between the plaintiff and the defendant was as alleged by plaintiff, that the defendant should receive a net price of $ 16 an acre and the plaintiff take as his commission all above that, and that as a part of that agreement or an agreement with plaintiff to act as agent or broker named specific terms of sale, and you further find that those terms and agreements were departed from in any material respect, and the land was sold on other terms than the terms agreed upon between plaintiff and defendant, and you further find that the defendant did not agree with the plaintiff to the change of terms and did not consent to a sale by plaintiff of the land under the claimed change in terms and agreement, but the sale was consummated without the agency of plaintiff continuing, and without the defendant agreeing to the change in terms and conditions of sale alleged to have been made, then you must find for the defendant. . . .

"The agent or broker must furnish a buyer ready, able, and willing to buy on the terms and conditions upon which the lands have been given by the seller to the agent for sale. However, if a purchaser, ready, able, and willing to buy is produced, and he refuses to buy on all the terms and conditions which the seller has named to his agent or broker, and the seller through his agent--in this case the defendant...