Pickerell v. Griffith
| Decision Date | 11 November 1947 |
| Docket Number | 47068. |
| Citation | 29 N.W.2d 588,238 Iowa 1151 |
| Parties | PICKERELL v. GRIFFITH. |
| Court | Iowa Supreme Court |
Life & Davis, of Oskaloosa, for appellant.
Bray Carson & McCoy, of Oskaloosa, for appellee.
Plaintiff alleged in his petition that on or about the 27th day of March, 1946, the defendant orally employed him to find a purchaser for her residence property in Oskaloosa, Iowa, for which service she would pay him five per cent of the purchase price; that he found a purchaser who paid defendant $6800 for the property and received a deed therefor, and defendant thereby became indebted to plaintiff in the sum of $340, with interest thereon at five per cent from April 1, 1946, which amount defendant has refused to pay.
Defendant by answer admitted the sale of her property for $6800 to a purchaser brought to her by plaintiff, but denied the making of the alleged contract or any contract with plaintiff, and any and all liability to plaintiff because of said sale.
The jury returned a verdict for plaintiff against defendant for $349 on which judgment for plaintiff was entered.
There was evidence of the following matters: That on or about the 24th to the 27th of March, 1946, the plaintiff called upon defendant at her home and when no third person was present asked her if her home was still for sale, and she replied that it was and that she had 'run an ad on the property but the buyer had only wanted to pay a small amount down and she wanted the cash'; that plaintiff told her he had a party who might be interested and who would pay her all cash, and plaintiff inquired what price she was asking, and she replied that she could not give him any price for a couple of days until she found out what the expense and her income tax would be; that she asked plaintiff what his charge for selling it would be and on being told that it would be 5% she said she would pay him that amount if he sold the property, and that he could show the property to his party and she would tell him the price later. Plaintiff testified that he thought this conversation was on March 24, 1946. The 24th was Sunday. Plaintiff alone testified to the above matters. Defendant denied that any of them occurred either on the 24th or any other day. Plaintiff testified that on this same day, the 24th, he showed the house to his prospect, Alvin Shultz, in the presence of the defendant. She admitted this as a witness, and said that she had a conversation with Shultz in the presence of the plaintiff. On objection that it was immaterial, incompetent, and irrelevant, and had no bearing on any issue in the case, the court did not permit her to give the conversation. Shultz was not a witness in the main case, but as a witness for plaintiff on rebuttal, over objection he testified to his conversation with defendant. He testified that possibly a week before he and plaintiff went to see the property, he was in the market for a house and called at plaintiff's office and asked him to look up a house, and that plaintiff looked through his cards of listings and said he had a house on north 3rd. street that was listed at $6500; plaintiff called defendant and asked her if she had sold the place and if he might bring somebody to look it over. Shultz did not remember the date of their call. Over an objection that included the grounds that the question was leading and suggestive, he was asked on direct examination: 'Now at that time you may state whether or not you heard Mr. Pickerell say to Mrs. Griffith, 'We came down to see whether you still wanted to sell your property and whether your price is the same as previously listed--6500.'' The insert quotation was propounded to the defendant on the same day, but shortly after, the alleged agency agreement was made between plaintiff and defendant when no one else was present, according to plaintiff's testimony, above noted. The answer of Shultz was:
According to the testimony of plaintiff and of Shultz, the plaintiff was the defendant's agent to sell, and Shultz' agent to buy, in the same transaction. Shultz was not asked about any oral agreement between plaintiff and defendant.
Plaintiff testified that the next day, March 25th (Monday), he again saw defendant at her house and told her that he had another party who might be interested to whom he would like to show the property, and asked her what her price was, and she told him $6800. In the afternoon of that day, he took Mrs. John Williams, of New Sharon, Iowa, to the property and the defendant showed her through the house. The next day, plaintiff again came to the property with Mrs. Williams and her husband. Defendant took them through the house, and testified that, as the group was leaving the house, Mr. Williams asked her what her price was and she told him $6800. Mr. and Mrs. Williams then went with plaintiff to his office where he prepared in duplicate a contract for the purchase and sale of the property, which the Williams signed. Mr. Williams paid him $100 in cash and plaintiff took the cash and contracts to defendant, who refused to accept the $100 or to sign the contracts until her attorney had examined the contract. After her attorney approved it, defendant signed the contracts and delivered one to plaintiff and received the $100. It appears from the testimony of Mr. and Mrs. Williams that plaintiff was in error as to his dates, although he did not alter his testimony. The contracts were dated March 28th and were executed by all parties on that day. That was the date on which Mr. and Mrs. Williams together inspected the property. Mrs. Williams had examined it the day previous, March 27th, which was the day after Shultz looked at the property on March 26th.
Sometime later the purchasers and defendant met at the office of the latter's attorney and the transaction was closed by the payment of $6700, the balance of the purchase price. Defendant removed from the property to the town of Beacon on May 11, 1946. Sometime later plaintiff called on her there and asked for his commission and defendant told him that she owed him nothing since the sale was brought about through the sale ad. There is no direct evidence that either Mr. or Mrs. Williams had any knowledge of the advertisement for the sale of her property, which defendant put in the afternoon Oskaloosa paper. They testified that they knew nothing of the ad, and that they had engaged plaintiff to find them a house and no one but he had anything to do with procuring it.
It is the defendant's contention that various rulings of the court were erroneous, and that, in the conduct of the trial, the judge, abetted by plaintiff's counsel, was unfair as between the parties, and the remarks of the judge, were, without provocation, of a nature to belittle both the defense and the defendant's counsel, and to deprive defendant of a fair trial.
I. Defendant complains because she was not permitted to show, either by her own testimony, or by the newspaper itself, that on March 25, 1946, she caused to be placed in the Oskaloosa Herald, a daily paper, which, as stated in defendant's argument, comes on to the street about 3 P. M., the following advertisement:
The fact that there was such a sale ad was first put into the record by plaintiff on his direct examination as shown herein. It was again put into the record by plaintiff, by repeated interrogation, over objections, when on direct examination he asked Mr. and Mrs. Williams whether either of them had seen, or had knowledge of, the advertisement. Each answered in the negative.
Defendant was first asked in her direct examination whether or not she had inserted the ad on March 25th. The court sustained an objection that it was leading, suggestive, hearsay, self serving, incompetent, irrelevant and immaterial to any issue in the case. Her attention was then directed to the ad in a copy of the newspaper. The offer was met by this objection: 'Plaintiff objects to counsel making further reference to the Oskaloosa Herald as repetition, the Court has sustained the objection and it will not be admissible in evidence, and plaintiff objects to the effort to get before the jury evidence which the Court has said should not go to the jury.'
Plaintiff's objection to the way of laying the foundation was sustained. The question was again asked defendant whether she had inserted the ad on March 25th, To plaintiff's objection the court said:
'Mr. Life: The defendant now offers to prove by this witness that * * *
'Court: Yes, you better try this law suit like a lawyer would try it.
'Mr. Life: I insist on making an offer.
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