Pengilly v. S. Land Co.

• Decision Date: 07 April 1916
• Docket Number: No. 502/30750.,502/30750.
• Citation: 157 N.W. 146
• Parties: PENGILLY v. SOUTHERN LAND CO. BLAIR v. SOUTHERN LAND CO. WHITSON & RAHTO v. SOUTHERN LAND CO.
• Court: Iowa Supreme Court

157 N.W. 146

PENGILLY

v.SOUTHERN LAND CO.

BLAIR

v.SOUTHERN LAND CO.

WHITSON & RAHTO

v.SOUTHERN LAND CO.

No. 502/30750.

Supreme Court of Iowa.

April 7, 1916.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

The facts are sufficiently stated in the opinion. The defendant appeals. Affirmed.Hunn & Jones, of Des Moines, for appellant.

Keithley & Bump and R. R. Nesbitt, all of Des Moines, for appellees.

PER CURIAM.

The three actions are against the same defendant, though each plaintiff sued on a distinct and independent cause of action. Pengilly and Blair moved that their cases be consolidated, and the motion was sustained. Not to be outdone, the defendant moved that the case of Whitson & Rahto against it be included, and this was done. As defendant acquiesced in the first ruling, error could not well be predicated thereon by defendant, and he has assigned none. Three sets of instructions were included in the one, and three verdicts returned.

[1] No errors are assigned, and the only brief points to be found in appellant's argument are: (1) That plaintiff may not recover on items not due at the commencement of suit; (2) the issue as to whether a note and mortgage was accepted as cash was for the determination of the jury; and (3) that “moneys received by the defendant under mistakes of fact as to property sold were not within the terms of plaintiffs' contracts providing for commission.” No particular ruling to which any of these is applicable is pointed out in connection therewith. Surely it is no part of the duty of this court to search the record, especially of the trial of three cases, to find the ruling to which an abstract statement of law may be applicable. But we have looked at the argument following the brief points, and find no error of which appellant may take advantage.

Pengilly's Case.

Pengilly was employed by defendant at $100 per month and expenses, and was to be paid $1 per acre for all land sold to purchasers produced by him. He received salary and expenses, but claims commission on the sale of 471 acres of land. He testified by the terms of his agreement with defendant's manager, Wetzell, he was to be paid commissions upon the signing of sale contracts. Wetzell swore that he was not to be paid until $10 per acre had been received on the purchase price. This issue was submitted to the jury, though not as specifically as it might have been, but no exception was saved to the instructions. The witnesses agreed that plaintiff discontinued the employment by defendant November 19, 1913, but plaintiff testified that he accompanied an excursion leaving Kansas City on that day on agreement with Wetzell that he should be paid $1 per acre on all land sold on that trip. Wetzell denied this. The issue was submitted to the jury.

[2] The jury was told to allow plaintiff compensation according to its findings, and, in any event, to allow plaintiff $154.80 said to have been admitted, and also that the subsequent cancellation of any of the contracts by the defendant would not deprive plaintiff of the commission thereon. No objections to the instructions were filed, and by omitting to so do defendant is deemed to have waived the errors, if any, therein. Section 3705a, Code Supp.; State v. Nott, 149 N. W. 79;State v. Stanton, 154 N. W. 762;State v. Fisher, 154 N. W. 587;American Fruit Product Co. v. Davenport Vinegar & Pickling Works, 154 N. W. 1031;Johnson v. Bernstein, 155 N. W. 266;Garden v. Moore, 156 N. W. 410.

Whitson & Rahto Case.

The plaintiffs in this case were employed by defendant to find purchasers for Texas land, and were to be paid therefor “an amount equivalent to 10 per cent. of the gross amount of sales of such lands made.” One-half the compensation was to be paid when a one-third of the total purchase money of any tract of land was received in cash, and the balance when one-half of the purchase price had been received by defendant. The plaintiff produced purchasers, H. A. Brewer and S. D. Pringle, of Webster City, who bought 80 acres for the consideration of $14,000, and as part of the purchase price transferred to defendant a note for $10,000, secured by a mortgage covering 184 acres of land in Hamilton county, and in consideration of $2,000 of this defendant undertook to clear the land and excavate necessary lateral ditches for irrigation purposes. One-fourth of the commission was assigned to F. A. Sackett, and the jury allowed plaintiffs 7 1/2 per cent. of $12,000, with interest.

[3] This disposes of the issue as to the amount of the purchase price, and, as the finding was for defendant, it cannot be heard to complain. The only other issue was whether the note and mortgage was to...