Petersen v. Swanson, 5637

• Decision Date: 08 July 1931
• Docket Number: 5637
• Citation: 51 Idaho 49,1 P.2d 630
• Parties: JOSHUA PETERSEN, Respondent, v. CHARLES H. SWANSON, Appellant
• Court: Idaho Supreme Court

1 P.2d 630

51 Idaho 49

JOSHUA PETERSEN, Respondent, v. CHARLES H. SWANSON, Appellant

No. 5637

Supreme Court of Idaho

July 8, 1931

BROKERS-RIGHT TO COMPENSATION-LIABILITY OF PRINCIPAL-PLEADING-PUBLIC RECORD-DENIAL ON INFORMATION AND BELIEF.

1. Jury's verdict on conflicting evidence bound appellate court.

2. After broker has found customer and commenced negotiations neither principal nor customer can break them off and defeat broker's right to commission by concluding transaction without his aid.

3. Principal cannot reject offer of customer found by broker and then without broker's intervention sell to same person and thus defeat broker's right to commission.

4. Broker is entitled to commission, though he takes no part in negotiations, where sale is effected as a result of his introducing customer and principal.

5. Best evidence rule held inapplicable to introduction of oral evidence as to real estate broker suing for commission being licensed.

6. Licenses of real estate brokers are matters of public record (Laws 1921, chap. 184).

7. Denial on information and belief that broker suing for commission, was licensed realtor held insufficient as relating to matters of public record (Laws 1921, chap. 184).

8. Contract between owner and realtor and evidence relating to owner's actions held sufficient to charge owner with liability for acts of agent who negotiated with broker and customer procured by broker, without further evidence concerning agent's authority.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for commission for services as broker in sale of real estate. Judgment for plaintiff. Affirmed.

Judgment affirmed, costs to respondent.

Frank Langley and Walter H. Hanson, for Appellant.

An agency looking towards the sale of real property or any interest therein must be in writing, and any person who deals with a special agent is bound to ascertain the nature and extent of his authority. (C. S., secs. 7974 and 7976, subd 5; Spokane Cattle Loan Co. v. Crane Creek Sheep Co., 39 Idaho 801, 230 P. 772; Thompson v. Burns, 15 Idaho 572-600, 99 P. 111.)

Ezra R Whitla, for Respondent.

Where the broker finds the purchaser and the principal afterwards completes the deal with him, the broker is entitled to his commissions. (9 C. J. 600, 619; Geiger v. Kiser, 47 Colo. 295, 107 P. 267; Reid v. McNerney, 128 Iowa 350, 103 N.W. 1001; Marlatt v. Elliott, 69 Kan. 477, 77 P. 104; Lerner v. Harvey, 189 Mich. 249, 155 N.W. 427; Conn v. St. Paul Park Realty Co., 101 Minn. 391, 112 N.W. 526; Shober v. Blackford, 46 Mont. 194, 127 P. 329.)

The denial upon information and belief of the license of Petersen as a real estate broker does not raise an issue. (Simpson v. Remington, 6 Idaho 681, 59 P. 360; Vadney v. State Board of Medical Examiners, 19 Idaho 203, 112 P. 1046; Bennett Co. v. Twin Falls Land etc. Co., 14 Idaho 5, 93 P. 789; First Nat. Bank v. Callahan Min. Co., 28 Idaho 627, 155 P. 673; First Nat. Bank v. Walker, 27 Idaho 199, 148 P. 46; Sneddon v. Birch, 39 Idaho 720, 230 P. 29.)

Proof that license issued may be made by parol as it does not call for the contents of a writing. (William A. Eastman v. Watson, 72 Wash. 522, 130 P. 1144; Miller & Sons v. Simmons, 67 Wash. 294, 121 P. 462; Ball v. Loughridge, 30 Ky. Law Rep. 1123, 100 S.W. 275; Rabb v. North American Accident Ins. Co., 28 Idaho 321, 154 P. 493; Amonson & Pyatt v. Stone, 30 Idaho 656, 167 P. 1029; Carstensen & Anson Co. v. Wright, 25 Idaho 492, 138 P. 830.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

In his complaint against appellant, respondent alleged that he was a duly licensed realtor (real estate broker) engaged in the occupation of selling real property for others on commission, in the city of Coeur d'Alene; that while he was such duly licensed realtor, and on April 27, 1927, appellant, who was the owner of an apartment building in Coeur d'Alene, made and entered into a written contract with respondent authorizing the latter to sell said property for $ 32,500, subject to an incumbrance of $ 16,000, and authorizing a trade for tracts of land up to $ 5,000; that thereafter and while said contract was in full force and effect respondent found a party, to wit, James R. Delp, who owned certain other property and who was ready, willing and able to make an exchange of his property or purchase the property of appellant by substantially the terms suggested by appellant; that appellant notified respondent that one Emil Rodell was his agent and attorney in fact for the purpose of handling said matter, and authorized respondent to complete said matter through Rodell; that thereafter respondent brought Rodell and Delp together and entered into negotiations for the sale of appellant's property to Delp and the acceptance by appellant, as a part of the purchase price, of certain property owned by Delp; that thereafter Rodell and appellant, for the purpose of defrauding respondent of the commission due him, entered into a conspiracy to prevent respondent from completing the deal and pretended to complete it themselves, after respondent had instituted the negotiations in regard thereto; and thereafter Rodell and appellant, acting jointly, did complete the transaction and sell appellant's property to Delp on substantially the terms at which respondent had been authorized to sell the same, for the purpose of cheating and defrauding respondent of his commission.

Appellant's answer to the complaint put in issue most of the material allegations of the complaint. Upon trial of the cause by the court and jury a verdict was returned for respondent. From the judgment entered on the verdict appellant has prosecuted an appeal to this court.

The written contract between appellant and respondent, dated April 27, 1927, authorized respondent to sell appellant's property for $ 32,500 (which included an incumbrance of $ 16,000) and to accept as part payment an acre tract "up to $ 5,000." The contract further provided:

"Upon securing a purchaser ready, able and willing to buy said property in accordance herewith, or upon your effecting any exchange in whole or in part which I may hereafter accept, I (appellant) agree to pay you (respondent) a commission according to the official rates of the Coeur d'Alene Realty Board above set forth, or in case of an exchange a commission of $ .

"In the event said property is otherwise sold or disposed of during the life of this contract, or in case I shall at any time hereafter sell said property to any customer introduced by you within the period of time in this contract specified, I agree to pay you a commission on the above list price herein at said rate", the contract further specifying the rate of commission to be paid thereunder.

During the latter part of 1927, Rodell inspected Delp's land, in company with respondent. Rodell stated to Delp that he was acting for appellant. A letter written to respondent, dated January 12, 1928, signed "Chas. H. Swanson" (appellant) stated that appellant might trade with the land Rodell mentioned that respondent had "if the party could get it clear. I'm planning on a trip down the latter part of this month so get busy and work up something by that time. You know just about what I want and what I should realize out of the Antler Block. " Then, Rodell, purporting to act for appellant, made a written agreement with respondent whereby Rodell was to give respondent a warranty deed to appellant's property in return for a mortgage held by res...