Reynor v. Mackrill

• Decision Date: 03 October 1917
• Docket Number: 30175
• Citation: 164 N.W. 335,181 Iowa 210
• Parties: S. W. REYNOR, Appellee, v. A. D. MACKRILL, Appellant
• Court: Iowa Supreme Court

164 N.W. 335

181 Iowa 210

S. W. REYNOR, Appellee, v. A. D. MACKRILL, Appellant

No. 30175

Supreme Court of Iowa, Des Moines

October 3, 1917

Appeal from Jones District Court.--F. O. ELLISON, Judge.

SUIT for commission alleged to be due for complying with a written contract to obtain a purchaser for land, and securing a contract of sale. The answer is that plaintiff made no sale produced no buyer who ever bought, so as to meet the contract; that the one tendered did not have the means to buy; and that, after extensive negotiations and efforts to sell, this person tendered, a Mrs. Blankenburg, failed to buy, and the negotiations were abandoned; that, on account of all this, defendant was compelled to procure a loan on the land to meet a payment due, and compelled to lease the farm that thereafter he himself sold the farm and deeded it to Mrs. Blankenburg, in which sale plaintiff in no manner assisted or aided, wherefore defendant is in no manner indebted to plaintiff. Plaintiff had judgment upon verdict and defendant appeals.

Affirmed.

M. W. Herrick and B. E. Rhinehart, for appellant.

Remley & Remley, for appellee.

SALINGER, J. GAYNOR, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

I.

Plaintiff wrote defendant that, if he wished plaintiff to try and sell, plaintiff would try for another month on terms previously talked, and, "If I can sell the farm for $ 40 per acre, you will give me $ 500 for making the deal--I think I can sell the farm inside of five weeks for $ 40 an acre." Defendant answered:

"If you can sell that place at $ 40, please let me know and I will send contract. So please let me know."

As a witness, plaintiff testifies that defendant asked that plaintiff let him know if plaintiff got a purchaser, and defendant would send the contract.

A point is made of its being necessary, both in law and under the contract, that the owner should be notified that the agent had a customer, and of the terms proposed by him, so that the owner might, if he elected, enter into a binding contract. If that be a requisite, it was met. The proposed buyer, Mrs. Blankenburg, and the owner and the agent met; the owner was advised that this woman was such purchaser; the terms were fully talked over; and the buyer advised the owner that she was there to close up. The jury could find that the owner agreed, and said, "All right, go down and draw up the contract;" that the buyer and seller directed what should be put into the contract; that work on writing up the contract was entered on; and that, while it was not finished, because the owner left to get an abstract, it was being written up while he was away for that purpose. This was on February 20th. Defendant says he stated that the agent had done nothing, and he (plaintiff) was there to sell in person, and that they were together to make a contract, if they could get together. The jury could find that the terms had been talked over in January, and agreed to on this February 20th, and the deal was to be completed at Davenport the next morning; that defendant said that, if plaintiff had sold the farm by the middle of January, he would have been in time. It could find that defendant complained of the delay, and at least intimated that this delay had greatly inconvenienced him, that he said the contract had expired long ago, and that he would not go ahead with a new deal unless he got more than the original terms. Plaintiff conceded that the contract time had expired.

It is questionable whether the answer raises the issue of want of notice. Be that as it may, the expiration of the contract time and failure to give notice must not be confused with the claim that the agency was at an end when plaintiff acted. Assume that defendant was justified in not dealing because the contract time had expired, that does not make the position tenable that there is no liability because there was a failure to give notice to the owner. Whatever other defenses defendant may have, failure to notify, where everything the notice could accomplish was effected without the giving of such notice, is not a tenable defense. The citations which plaintiff presents in support of her position are: Beamer v. Stuber, 164 Iowa 309, at 312, 145 N.W. 936. It holds:

"It is not enough that a parol offer to buy be made to the agent. The proposition should be to the principal, to the end that the statute of frauds may be obviated by reducing the agreement to writing. * * * This does not necessarily mean that the offer shall be made by the purchaser to the seller, but that it shall be made in such circumstances that the latter may then exact the execution of a binding contract if he so elects. There is no reason why the agent of the seller may not communicate to him an offer of purchase, and, if the proposed purchaser is immediately accessible, so that a written contract then and there may be executed, and he is ready, willing, and able to consummate the deal, this is enough."

This opposes rather than supports appellant.

McDermott v. Mahoney, 139 Iowa 292, 115 N.W. 32, gives no support, nor McGinn v. Garber, 125 Iowa 533, 101 N.W. 279. Flynn v. Jordal, 124 Iowa 457, decides that an agent, to earn his commission for services in finding a purchaser of land where the sale is not consummated, must procure a valid obligation to buy and tender it to the vendor, or bring the parties together so that the sale may be made if the vendor elect, and that there is the right to withdraw an offer before it is accepted, but, if the proposed buyer takes his money from the bank, and advises, upon acceptance, that he has given up taking the land, or, in the absence of such advice, a reasonable time has elapsed wherein to accept, the contract binds neither party, and there can be no recovery unless it was made to appear that the proposed buyer was ready, willing and able, when the contract was tendered.

Dean v. Goodrich, 160 Iowa 98, 140 N.W. 435, gives no support; so of Hill v. Dakin, 162 Iowa 103, 143 N.W. 821. Both but hold that the contract made must be performed. And all that Osborne v. Dannatt, 167 Iowa 615, 149 N.W. 913, decides is that, where a petition based on a commission contract which provides for sale within a specified time, fails to plead performance within that time, and sets up no facts to avoid such provision, it is demurrable.

The point to Felts v. Butcher, 93 Iowa 414, 61 N.W. 991 is that the petition declares...