Ranney v. Donovan
| Decision Date | 28 December 1889 |
| Citation | 44 N.W. 276,78 Mich. 318 |
| Court | Michigan Supreme Court |
| Parties | RANNEY v. DONOVAN. |
Error to circuit court, Branch county.
H. H. Barlow, for appellant.
F A. Lyon and E. O'Brien, for appellee.
Plaintiff sued defendant in assumpsit upon the following contract: The following facts were shown by plaintiff. In the year 1885, Sawyer, Goodman & Co., of Chicago, were the owners of a tract of pine land containing 2,240 acres, and Wilhelm Boeing, of Detroit, was the owner of another tract of pine land, containing 1,680 acres. These tracts were situated in the state of Wisconsin. In that year, George S. Phinney, John O'Callaghan, and John S. Ranney, the plaintiff, and James Donovan, the defendant, were real-estate brokers, doing business in Chicago and elsewhere. In the early part of 1885, Sawyer, Goodman & Co. entered into an arrangement with Phinney whereby it was agreed that, if Phinney should bring said Sawyer, Goodman & Co. a purchaser for the "Goodman Tract" at the price of $44,800, he should receive a commission of $2,600. At the same time, O'Callaghan had an arrangement with Boeing, whereby it was agreed that, if O'Callaghan should bring said Boeing a purchaser for said "Boeing Tract" at the price of $33,000, he was to receive a commission of $3,000. O'Callaghan and Phinney had agreed to work together in procuring a purchaser or purchasers for both tracts of land. Phinney went to Ranney, and gave to him the plats of these lands, upon which plats the Goodman tract was marked red and the Boeing tract green, and said, "If you can find a purchaser for these lands we will divide." Subsequently, Phinney, Ranney, and O'Callaghan, as the two former testify, made an agreement to share the profits on these two tracts of land together with a fourth person. O'Callaghan denies that he was a party to any such arrangement. Phinney and Ranney agree that they fixed the price of the lands to be sold by them at $1.65 per 1,000, and they were to divide the difference between $77,800 and the sum they should realize from the sale at $1.65 per 1,000 among the four. Ranney made the contract with Donovan without the knowledge or consent of Phinney or the others. Ranney and Phinney finally agreed to sell the Goodman tract, as Phinney testifies, for $47,800, and to divide the difference between that sum and $44,800. Ranney introduced Donovan to Phinney, and Phinney brought Donovan and Sawyer, Goodman & Co. together. Donovan paid the latter $44,800, and they deeded him the land. He paid Phinney $3,000 at the time the sale was closed, or soon thereafter. Ranney was not present when the sale was made. Ranney claims that he is entitled in this suit to one-fourth of the difference between $44,800 and $47,000, to-wit, $550. Donovan sold this tract for $50,000, or at $3,000 advance,-one-half of which profit Ranney also claims,-making in all, upon the Goodman tract, the sum of $2,050. In relation to the Boeing tract, and the sale thereof, the plaintiff knows nothing, except by hearsay. Phinney, who testifies for plaintiff, and O'Callaghan, who was a witness for defendant, tell different stories as to the transaction. Phinney testifies that after Donovan wanted the lands he wrote to O'Callaghan, who lived at Hancock, Mich., and who, in response to his letter, came to Chicago. Ranney, Phinney, and O'Callaghan met in Chicago. Donovan was also present. It was there agreed that Donovan and O'Callaghan should go to Detroit, and close the matter up with Boeing. The testimony of Phinney and plaintiff tends to show that this land was to be taken by Donovan in the same way as the Goodman tract; the difference between the amount realized at $1.65 per 1,000 and $33,000 to be divided between Phinney, plaintiff, O'Callaghan, and another. O'Callaghan testifies that he knew nothing of Ranney in this transaction; that he received a letter from Donovan, and went to Chicago upon its receipt; that at this time his option on the Boeing tract had expired; that he went to Detroit with Donovan, and there saw Boeing and his agent, Ziba B. Graham, and there they made a trade for the land, Donovan paying Boeing $33,000 for the same. Donovan paid O'Callaghan $3,000 commission on this sale. Donovan afterwards sold this tract at $2 per 1,000. This tract was guarantied in the contract at 23,000,000 feet; but plaintiff admits that it only amounted to, and was sold on the basis of, 21,300,000 feet, while Donovan claims he only realized $2 per 1,000 on 20,300,000 feet. Plaintiff claims on this sale one-quarter of the difference between $35,145 and $33,000; such difference being $2,145, and one-quarter of the same, $536.25. He also claims under the contract with Donovan one-half of $7,455; that being the difference between 21,300,000 feet at $2 per 1,000, to-wit, $42,600, and the same number of feet at $1.65 per 1,000, to-wit, $35,145. Plaintiff's claims sum up as follows:
One-fourth of commission on Goodman tract ... $ 550 00
One-half Donovan's profits .................. 1,500 00
One-fourth commission Boeing tract ............ 536 25
One-half Donovan's profits .................. 3,727 50
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He recovered judgment for $7,352.15. The defendant admitted making the contract, as above set forth, with plaintiff, but claims that Ranney represented to him that he held the option for these lands direct from the owners. He supposed that the only commission Ranney was to receive was the half he would get under this contract, which he understood Ranney would have to divide with three others. After the contract was made, defendant testifies that Ranney introduced him to Phinney. He asked Phinney if he was the owner, and he said he was not. Defendant then and there told plaintiff that he repudiated the contract. He thereafter acted with Phinney and O'Callaghan, and paid no further attention to plaintiff or the contract. Did not buy the lands under the contract, but by an arrangement of his own with Phinney and O'Callaghan. Went with Phinney to Sawyer, Goodman & Co., and bought the land of them, and paid Phinney $3,000 for his commission. Went with O'Callaghan to Detroit, and bought the land of Boeing, and paid O'Callaghan $3,000 commission. He took one L. S. Baker in with him upon the Boeing tract, and paid to him one-half of the profits he made on that sale. He does not state the amount he paid to Baker, but testifies that he sold on the basis of 20,300,000 feet. This would have made Baker's half of the profits $2,727.50. Baker, however, testifies as a witness for plaintiff, that the profits were $7,455, one-half of which would be $3,727.50, and that defendant gave him a check for this amount.
We think error was committed by the court below in submitting to the jury plaintiff's claim for one-fourth of the commissions paid to Phinney and O'Callaghan. It plainly appears from plaintiff's own showing that Phinney acted for plaintiff and the other brokers, with whom he was to divide the commission in this sale from Sawyer, Goodman & Co. to Donovan, and Donovan was justified in paying the commission to Phinney. Plaintiff and the other brokers must look to Phinney for their share, and not to defendant. The same principle applies to the Boeing contract, but with greater force, under the testimony, as it is doubtful if plaintiff had any claim upon the commission in that sale. If he has any such claim, he must look to O'Callaghan, and not to defendant. This disposes of $1,086.25 of plaintiff's claim; and the court should have so instructed the jury, as requested by defendant's counsel. There was no testimony tending to show that Donovan ever agreed to pay this one-fourth, in either case, to plaintiff, or that such one-fourth was demanded of him before he paid it over to Phinney and O'Callaghan.
There were no errors in the admission of testimony. It was competent for plaintiff to show that he had a verbal option to sell these lands, as between him and the defendant. No question arises in this case as to the enforcement of a conveyance under this option. The land was conveyed; and the plaintiff had the right to show that he was verbally authorized by Phinney to sell the lands at a certain price and that Phinney was authorized by the owners to sell at another price, as bearing on the questions involved in this case. It was also proper for him to show that in a conversation with Donovan the latter presented him with a receipt, and requested him to sign...
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