Powers v. Security Savings & Trust Co.

• Decision Date: 17 November 1923
• Citation: 222 P. 779,38 Idaho 289
• Court: Idaho Supreme Court
• Parties: HARRY L. POWERS, Respondent, v. SECURITY SAVINGS & TRUST COMPANY, a Corporation, Appellant

222 P. 779

38 Idaho 289

HARRY L. POWERS, Respondent, v. SECURITY SAVINGS & TRUST COMPANY, a Corporation, Appellant

Supreme Court of Idaho

November 17, 1923

AGENCY - REAL ESTATE BROKERS - CONTRACT-EXCLUSIVE RIGHT TO SELL-BREACH OF CONTRACT BY PRINCIPAL-BULK SALES-SCOPE OF AGENT'S AUTHORITY-PLEADING-AMENDMENTS-APPEAL AND ERROR-INSTRUCTIONS.

1. Propositions to amend a pleading, during the trial of a cause, are addressed to the sound discretion of the trial court.

2. Where the trial court, because of the allowance of an amendment at the trial, indicated a willingness to grant a continuance, appellant cannot take chances on the result of the trial and lose, and then be heard to complain of the action of the trial court in allowing the amendment.

3. This court will not disturb a judgment because of the alleged error of the trial court in submitting to the jury the determination of whether the contract granted respondent the exclusive right to sell the lands, where such alleged error was committed at the instance of appellant.

4. In an action by a real estate broker against the owner of lands listed for sale for a definite period, the broker is en- titled to damages for the breach of the contract upon a sale of the lands by the owner directly, or through another agent, prior to the expiration of the time granted the agent to sell the lands, where the broker is not only required to spend, and has spent, labor and money in advertising the lands for sale and in establishing and maintaining an office for such purpose, but where the broker has agreed to sell all the lands described in the contract during the term thereof.

5. Under a contract between the owner of lands and a real estate broker, in which the broker binds himself to sell all the land within three years and to expend time and money in so doing, the broker does not waive his right to damages for the breach of the contract, upon a sale of all the lands by the owner within the period of the contract, by urging that all the lands be sold in bulk with other lands, the broker having received a commission upon an earlier similar bulk sale.

6. An agent will not be heard to urge that it acted beyond the scope of its authority in entering into a contract with a real estate broker which granted to the broker the exclusive right to sell lands, where the complaint alleged and the answer admitted the agent's authority to enter into the contract.

7. A trial court does not commit error in refusing to give a requested instruction where there is no evidence to sustain the theory upon which the instruction was based.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action for damages for breach of contract of agency for sale of real property. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent. Petition for rehearing denied.

Frank L. Moore and I. N. Smith, for Appellant.

No contract by the owner or his agent, for the sale of the owners' land, can exclude the owner from selling his own property unless the contract expressly so provides. (4 R. C. L., pp. 259, 260, sec. 12; 2 C. J. 776, 777, notes 47, 48 49; 2 C. J. 756 and cases.)

The following requirements of the contract specifying Powers' duties are not sufficient to make his contract exclusive: (a) That Powers should maintain his office at his own expense and advertise and prosecute the sale actively. Chambers v Seay, 73 Ala. 372; Cronin v. American Securities Co., 163 Ala. 533, 136 Am. St. 88 and note, 50 So. 915.)

(b) The time limitation for performance of the contract. (4 R. C. L. p. 259, sec. 12; Bonar v. Bunn (Tex. Civ.), 158 S.W. 1186; Moore v. May, 10 Ga.App. 198, 73 S.E. 29; Crawford v. Cicotte, 186 Mich. 269, 152 N.W. 1065; Head-Berry Co. v. Bannister, 52 Okla. 763, 153 P. 669.)

The owner had the right to sell his own land to his own customer, although the property was listed with an agent for sale. (Spotswood v. Morris, 12 Idaho 360, 85 P. 1094, 6 L. R. A., N. S., 665.)

The third cause of action as amended does not allege, nor do the facts show that the No. 3 Bondholders themselves ever divested themselves of the power to sell their own lands or that they ever gave the Security Savings & Trust Co. an exclusive right of sale or the power to delegate such exclusive right of sale, either with or without the consent of the committee of three. (Lord v. Wapato Irr. Co., 81 Wash. 561, 142 P. 1172, at 1179; 2 C. J. 685; 1 Am. & Eng. Ency. of Law, 2d ed., 971; Quist v. Goodfellow, 99 Minn. 509, 9 Ann. Cas. 431, 110 N.W. 65, 8 L. R. A., N. S., 153.)

Eugene A. Cox and Noel B. Martin, for Respondent.

Where the contract is for a fixed time, binds the agent absolutely to sell the land within the time limited, requires the agent to spend time and money to carry it out, and is accepted by the agent, who fulfils the duties imposed thereby, and spends time and money fulfiling the contract, the principal lacks the right to terminate the contract, without liability to the agent. (Hunter v. Wenatchee Land Co., 50 Wash. 438, 97 P. 494; Levy v. Rothe, 39 N.Y.S. 1057; Elkhorn Consolidated C. & C. Co. v. Eaton Rhodes & Co., 163 Ky. 306, 173 S.W. 798; Popplewell v. Buchanan (Tex. Civ.), 204 S.W. 874; Johnson & Moran v. Buchanan, 54 Tex. Civ. 328, 116 S.W. 875; Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Weisels-Gerhart Real Estate Co. v. Epstin, 157 Mo.App. 101, 137 S.W. 326; Maddox v. Harding, 91 Neb. 292, 135 N.W. 1019; O'Connell v. Casey, 206 Mass. 520, 92 N.E. 804; Paulsen v. Rourke, 26 Colo. App. 488, 145 P. 711; Hollweg v. Schaffer Brokerage Co., 197 F. 689, 117 C. C. A. 83; Hardwick v. Marsh, 96 Ark. 23, 130 S.W. 524; Wright v. Beach, 42 Mich. 869, 46 N.W. 673; Rowan v. Hull, 56 W.Va. 335, 104 Am. St. 998, 2 Ann. Cas. 884, 47 S.E. 92; Attix Noyes & Co. v. Phelon, 5 Iowa 336; Hoskins v. Fogg, 60 N.H. 402; Cloe v. Rogers, 31 Okla. 255, 121 P. 201; Lane v. Albright, 49 Ind. 275; McMillan v. Quincy, 137 Ga. 63, 72 S.E. 506; Donald v. Lawson, 87 N.Y.S. 485; Durkee v. Gunn, 41 Kan. 496, 13 Am. St. 300, 21 P. 637; McCray & Son v. Pfost, 118 Mo.App. 672, 94 S.W. 998; Miller v. Brown, 115 Wash. 177, 196 P. 573; Roth v. Moeller, 185 Cal. 415, 197 P. 62.)

The fact that respondent, upon oral authorization, had been handling additional lands not included in his written contract would not estop him from relying upon his written contract. (Miller v. Brown, 115 Wash. 177, 196 P. 573.)

The parol evidence introduced as to the intent of the parties when the contract was executed, having been admitted upon the offer and insistence of appellant, is, if error at all, invited error of which appellant cannot complain. (Parker v. Metropolitan St. Ry. Co., 140 Mo.App. 703, 126 S.W. 759; Conlin v. Osbourn, 161 Cal. 659, 120 P. 755; McGillan v. Bennett, 132 U.S. 445, 10 S.Ct. 122, 33 L.Ed. 422, at 425; Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073; Nobach v. Scott, 20 Idaho 558, 119 P. 295, Mercer v. McPherson, 70 Kan. 617, 79 P. 118; Madera Ry. Co. v. Raymond Granite Co., 13 Cal.App. 668, 87 P. 27.)

The authority to make the contract was alleged in the complaint and admitted by the answer. Lack of authority of appellant to make the contract not being an issue below, will not be considered here. (Miller v. Donovan, 11 Idaho 545, 83 P. 608.)

WM. E. LEE, J. BUDGE, C. J., and McCarthy and Dunn, JJ., concur. Steele, District Judge, Sat at the hearing but took no part in the decision.

OPINION

WM. E. LEE, J.

--Upon a foreclosure sale in the federal court, certain bondholders of the Lewiston Land & Water Company, Ltd., known as the No. 3 Bondholders, acquired title, in 1918, to some two thousand acres of land in what is known as Lewiston Orchards, part of the land being planted to orchards in small tracts. The bondholders desired to dispose of the land as soon as possible. Title was vested in appellant, and the bondholders authorized appellant to convey the land in accordance with the directions of a committee of three employed by the bondholders for that purpose. This committee consisted of John H. Hall, R. L. Sheppard and H. C. Campbell, all residents of Portland, Oregon. For several years prior to the foreclosure sale, respondent had been in charge of the sales of the same lands for the Lewiston Land & Water Company, and was familiar with the property. After appellant acquired title to the lands, respondent was employed to manage and care for the same, but for some time the committee itself undertook to dispose of the lands. Certain negotiations were entered into looking to an agreement under which respondent would undertake to sell the said realty, but some delay ensued before such an agreement was actually effected. There is evidence tending to prove that the reason for the delay was that appellant did not want to give respondent an exclusive right to sell the lands, and that respondent refused to enter into any contract to sell the lands other than one granting him an exclusive right to sell. At any rate, it was something like a year after appellant took title to the lands before the agreement was entered into, and during that time no lands of the No. 3 Bondholders were sold.

On March 25, 1919, appellant and respondent entered into a contract in writing relating to the sale of the lands. The contract was approved by the committee of the bondholders and, in accordance with its terms, respondent opened an office in Lewiston and devoted himself to the sale of the real property. Respondent made sales aggregating five or six thousand dollars, and was paid a commission of twenty per centum of the sale price. Soon after the contract was entered into, respondent interested White Bros. & Crum Company in the purchase of a large acreage of...