Ratts v. Shepherd

• Decision Date: 09 July 1887
• Court: Kansas Supreme Court
• Parties: O. M. RATTS v. SHEPHERD, BUCHER & MCCOWN

14 P. 496

37 Kan. 20

O. M. RATTS v. SHEPHERD, BUCHER & MCCOWN

Supreme Court of Kansas

July 9, 1887

Error from Chase District Court.

ACTION by Shepherd, Bucher & McCown against Ratts to recover $ 300, as commission for the sale of a certain farm containing 837 acres. Trial at the December Term, 1885. Verdict for plaintiffs for $ 283. New trial denied, and judgment on the verdict. The defendant brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

C. H Carswell, and Peyton, Sanders & Peyton, for plaintiff in error.

Kellogg & Sedgwick, and Bowman & Bucher, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

The assignment of error to which most of the brief of the plaintiff in error is devoted, is, that there is not sufficient evidence to sustain the verdict of the jury. The facts as proven at the trial are as follows: The defendants in error were in the real-estate business at Emporia. The plaintiff in error was a resident of Chase county, and possessed a farm which he desired to sell. In December, 1884 he placed it in the hands of the defendants in error for sale, at $ 10,500, and was to pay three per cent. commission in the event they sold it for him. They advertised it in a newspaper, called the attention of the purchaser, Morris, to it, offered to take him to see the premises, directed him to the house of the plaintiff in error, and gave him a copy of the paper containing a description of it. The plaintiff in error sold the farm to Morris for the sum of $ 9,500, and included in the sale some corn, plows, and feed. The disputed question of fact on the trial, and around which clustered all the contention, was, whether Ratts limited the time within which the sale was to be made to the first day of March, 1885; and there was also a dispute as to the commission which was to be paid, the plaintiff in error contending that he was to receive the sum of $ 10,500, exclusive of all commission. The evidence was confined to the parties, on these questions, and the jury very properly, (as it seems to us in view of all the facts,) decided that the statements by the defendants in error gave the true history of the transaction, and returned a verdict in their favor. That verdict is sufficiently supported by the evidence. The defendants in error furnished a purchaser, and sent him to view the land. This resulted in a sale, and is sufficient to entitle them to a commission.

As to the other assignment of error, with reference to the tenth instruction, it may be remarked that the verdict of the jury sustained by sufficient evidence as we have seen, necessarily determines that there was not a limit of time within which the sale was to be made, as is claimed by the plaintiff in error; and this being so, this case does not come within the rule as laid down by Fultz v. Wimer, 34 Kan. 576, 9 P. 316. In the Fultz case there was a written contract authorizing a sale to be made within two months from the 18th of June, and further providing that if the owner or others should make a sale within that time a commission should be paid the real-estate agent. Within that time Fultz took a purchaser to see the land, and made a...