Reynolds v. Tompkins.

Decision Date15 December 1883
Citation23 W.Va. 229
PartiesReynolds v. Tompkins.
CourtWest Virginia Supreme Court
1. If an agent with authority to sell, upon a certain commission, in

the event of a sale, procures a purchaser at the price and on the terms authorized, who would have taken the property at the price, and the owner of the property steps in, ignores the agent, and sells to the purchaser so secured, at the same price and on the same terms, or for a less price, and on the terms proposed to the purchaser by the agent, even if they were different from the terms stipulated in the authority to sell, the owner is liable to pay to the agent the amount of commission stipulated to he paid. (p. 285.)

2. If the owner has several agents appointed to sell the same land,

and one of them finds a purchaser, and negotiates with him to sell the land at a certain stipulated price and on terms differing from those specified in the authority to sell, and when the sale is about to be consummated, another agent of the owner.meets the same person, who talks to him about the offer of the first agent, and with full knowledge of the negotiations of the first agent, the second agent sells the same property to such person for a less price, hut on the same terms as to cash down and time in which to pay the deferred payments, and the owner is ignorant of the negotiations of the first agent with the purchaser, but ratifies the sale by the second agent, made on the terms proposed by the first, he is not liable to the second but to the first agent and should pay him a reasonable compensation for procuring said sale. (p. 235.)

3. Affidavits of the jurors as to how they understood the instruc-

tions of the court, and that in accordance with such understanding the verdict was rendered, will not be read on a motion to set aside a verdict, (p. 236.)

4. The court below may grant anew trial, when the evidenca is con-

tradictory, and the verdict is against the weight of evidence, but in such a case the power of the court to grant a new trial should be cautiously exercised; and when in such case the court below grants a new trial, its opinion is entitled to peculiar respect, and the Appellate Court will not reverse sueh order unless it is plainly wrong, (p. 287.)

5. A stronger case should be made to justify an Appellate Court in

reversing an order granting than one refusing a new trial, (p. 287.)

The facts of the case are stated in the opinion. S. A. Miller and T. B. Knight for plaintiff in error. William II. Hogeman for defendant in error. Johnson, President:

In April, 1875, H. W. Reynolds brought his action of trespass on the case in assumpsit in the circuit court of Kanawha county against William H. Tompkins. The declaration contains the common counts and two special counts on a special contract to give plaintiff certain compensation for selling a tract of land in said county for the defendant. The special counts alleged, that plaintiff did find a purchaser, one Bowers, through Hoffman an agent for said Bowers, "that said Hoffman agent for said Bowers had become willing to pay for the said land the sum of thirty dollars per acre as aforesaid upon the terms aforesaid, the said defendant heretofore, towit, on the 15th day of October, 1873, sold and conveyed the tract of land to the said Bowers for the sum of twenty-five dollars per acre, although the said defendant well knew the fact, that the plaintiff had made the negotiations aforesaid with the said Hoffman as agent for the purchase of said land under the written authority aforesaid of said defendant; and that said Hoffman as agent for the said Bowers was then examining the lands aforesaid at the instance of the plaintiff with a view of purchasing the same. And the said plaintiff also avers, that the sale aforesaid, so made as aforesaid, was made and consummated by reason and in consequence of the action of the said plaintiff in inducing the said Hoffman as agent for said Bowers to examine said land with a view of purchasing the same; and that said sale was made without the knowledge of the said plaintiff; and that by reason of and in consequence of the action aforesaid of the said defendant the said plaintiff was prevented from selling the land to the said Bowers through his said agent Hoffman or to any other person, or persons; and the plaintiff: avers, that by reason of the promises and especially by reason of the action of the defendant as aforesaid the said defendant became liable to the plaintiff for a large sum of money, to-wit, the sum of nine thousand dollars."

The contract declared on in both special counts is as follows:" I propose to sell about one thousand tour hundred acres of the one thousand six hundred and seventy-five tract on the map I send. I reserve about three hundred acres lying above the Mile branch and back of II. P. Tompkins. Title perfect, and will be transferee! by deed clear of all incumbrance. Two veins now open the Coalburg vein and one now operated by II. P. Tompkins. Quality of both veins No. 1. Land well timbered. I will take twenty-five dollars per acre for above lands one half cash, balance in one and two years, with, six per cent, interest, and lien retained to secure deferred payments. Will give you all you can get above twenty-five dollars for the lands, and in the event you can only get twenty-five dollars, will pay you two thousand dollars commission. This is not an option but only a privilege of selling. Do your best and at once. I am told L. B. Dent the circus man proposes to invest in coal lands; try him. I am sure he can get no more desireable lands than mine.

' Yours truly,

"Wm. II. Tompkins."

There is but little difference in the two special counts.

The defendant demurred generally to lie declaration and each count, which demurrer the court overruled. The defendant, then pleaded non-assumpsit; and on. the 3d day of December, 1877, the issue was tried by a jury, and on the 7th of the said month a verdict was rendered "for the defendant." On the seventeenth day of December, 1877, on motion of the plaintiff and for reasons appearing to the court the verdict of the jury was set aside and a. new trial awarded, to which the plaintiff excepted., and the court in a bill of exceptions certified all the evidence together with the instructions given and exceptions taken to certain instructions given for defendant.

Under the statute authorizing a writ of errror in such case, without waiting for the new trial 1:0 be had, the plaintiff brought the case to this Court for review.

There was evidence tending to show, that the plaintiff had about completed the sale of the land to Hoffman upon different terms from those specified in the letter of defendant to plaintiff, to-wit, one fourth cash and the balance in one, two and three years. There was evidence also tending to show, that the defendant through his brother had sold the same land to Hoffman at the lowest price, at which Reynolds was authorized to sell it, on the precise terms, upon which Reynolds was about to sell it, and that Reynolds had been prevented Irom making the sale through the the unauthorized interference of the defendant or his brother; and further, that after the sale the defendant had told plaintiff, that the sale should not deprive him of his two thousand dollars. The court at the instance of the defendant and against the objections of plaintiff gave the four following instructions:

"1. If the jury believe from the evidence that the only authority the plaintiff had to sell the defendant's land mentioned in the declaration was a privilege given to him by the defendant in writing, to sell said land for one half the purchase-money in cash, and the balance in one and two years, with six])er cent, interest, and a lien retained to secure the deferred payments, and that the only attempt made by the plaintiff to sell said land, was to one person, for one fourth the purchase-money in cash and the balance in three equal instalments then the jury must find for the defendant.

"3. An action cannot be maintained upon a proposition to...

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