Runnion v. Morrison.
| Decision Date | 12 November 1912 |
| Citation | 71 W.Va. 254 |
| Court | West Virginia Supreme Court |
| Parties | Runnion v. Morrison. |
1.Brokers Real Estate Brokers Right to Commission.
In an action by a broker or agent, against the seller, on an agreement to pay him a commission for making sale of land, under a written option to buy it at a fixed price and on stated terms, it is no defense that the agent or broker was also paid a commission by the purchaser, to whom he had assigned his option contract.(p. 25G).
2.Contracts Modification.
A second option contract between the same parties, in respect to the same subject-matter, entered into before the expiration of the first, fixing the same price but changing the terms of payment, abrogates the first option, (p. 257).
3.Frauds, Statute of Services Rendered to Third Person.
The promise by one person to compensate another for services thereafter to be rendered to a third person, is an original promise, and need not be in writing to be binding (p. 259).
4.Appeal and Error Harmless Error Erroneous Instructions.
A judgment will not be reversed for erroneous instructions, if the verdict on which it is rendered is according to law and the facts, either admitted or fully proven and not denied.In
such case there is no prejudice.(p. 260).
Error to Circuit Court, Braxton County.
Action by E. E. Runnion against W. P. Morrison.Judgment for plaintiff, and defendant brings error.
Affirmed.
Linn, Byrne & Hines, for plaintiff in error.
Hall Bros., for defendant in error.
E. E. Runnion recovered a judgment for $852.33 against W. F. Morrison in the circuit court of Braxton county, and Morrison was granted this writ of error.
Counsel for defendant insist that the verdict is against both the law and the evidence; and the first assignment of error relates to the overruling of defendant's motion to set it aside.The action was brought to recover fifty cents per acre for making sale of coal underlying certain lands in Braxton county, aggregating 2, 074 acres, of which J. H. Chapman owned 190 acres, E. J. Hall 139.7 acres and plaintiff the balance.On the 3rd of May, 1906, Morrison executed to Bunnion a written option agreeing to sell the coal underlying his lands, at the price of $7.50 per acre to be paid for as follows: viz.: $1,000 on or before May 12, 1906; onethird of the whole purchase price as soon as the lands could be surveyed, titles abstracted and proper deeds made; and the balance in two equal instalments, in one and two years.The option was to become void, if the $1,000 was not paid on, or before, the 12th of May.At the same time Morrison also agreed, by a separate writing, to give Bunnion fifty cents an acre for making the sale.Bunnion testifies that, shortly after executing the writing, Morrison also agreed, orally, to pay him fifty cents an acre to sell the Hall and Chapman coal.Bunnion procured purchasers who bought both coal and surface of Morrison's land, at the price of $11 per acre, and also the coal underlying the Chapman and the Hall tracts at $7.50 per acre.The $1,000 was paid on the 12th of May by check of W. A. Stone, one of the purchasers; and later, the sale of the Morrison land, and the Hall and the Chapman coal was completed, and conveyances were made by the several owners to W. A. Stone, Joseph Kerr and John B. Carrutriers.
About ten days before that time, Morrison had given Bunnion an option to buy both coal and surface of his land at $11 per acre, on terms of one-half payable in thirty days, and the balance in twelve months with interest.That option also authorized Bunnion to sell the coal alone at $7.50 per acre, on the same terms of payment that were provided in case he sold the fee; but there was no provision for commission under the first option.Morrison contends that because both coal and surface were
sold, when the option embraced the coal only, it must have been sold under the first option, which did not obligate him to pay commissions.But it is clear that the second option, the one of May 3, 1906, was complete within itself and entirely supplanted the one of April 24th.The giving of the second, in place of the first, option, is thus explained by Runnion, and not denied by Morrison, viz: Runnion says he took the first option to TJniontown, Pennsylvania, and presented it to his prospective purchasers, and that they were not satisfied with its terms; that, as soon as he returned from Pennsylvania, he made their dissatisfaction known to Morrison, and thereupon the new option of May 3, 1906, and the separate written agreement to pay him fifty cents per acre were executed.He also testifies that he informed Morrison fully in regard to his relations with the purchasers; that he told him they were to pay him only fifty cents per acre, for buying the coal, and that he could not handle it for less than $1 per acre.Morrison knew that Runnion was not buying for himself; the option was immediately assigned to the real purchasers, and the cash payment of $1,000 was made by check of W. A. Stone, one of them, either payable directly to Morrison, or to Runnion, and indorsed by him to Morrison.In view of all the facts and circumstances surrounding the transaction, the relation of Runnion to Morrison was more that of broker than agent.He was not bound to Morrison to procure the best possible price; Morrison had fixed both price, and terms of payment, in the option.Ptunnion had no discretion in the matter.Consequently, his relation to Morrison and to the purchasers did not forbid his receiving compensation from both.He is not estopped to claim compensation from Morrison, beacuse he also received compensation from the purchasers.A middle-man, who acts as broker in bringing together buyer and seller, and who doeb: not act as the ageiK of either in making the contract of purchase, is entitled to compensation from both, on an agreement with each.Rupp v. Sampson, 16 Gray 398, 77 Am. Dec. 416;Alexander v. The NorthWestern Christian University, 57'Ind. 466;Montrose v. Eddy,, 94 Mich. 10, 34 Am. St. Rep. 323;Herr man v. Martineau, 1 Wis. 151, 60 Am. Dec. 368;Luteins v. The Nor dyke & Marmon Co.66 la. 471: Bell v. McConnell, 37 O. St. Rep. 396.
But Morrison contends that, because the surface was included, in the sale, with the coal, whereas the written option was for the coal only, the sale was made under the first option, by which he was not bound to pay commissions.The first option gave right to buy both coal and surface, at $11 per acre, or the coal only at $7.50.And Runnion testifies that, after the second option was executed, Morrison told him to sell the surface also, if he could, at $3.50 an acre, and that he agreed to do it.Morrison denied this, and it presented a question of veracity which the jury, not the court, had to decide.That Runnion did sell the coal and surface together, is proven and not denied; and that Morrison assented to it is conclusively shown by his executing deed therefor.But, Morrison says he never agreed to accept less than $11 per acre for both surface and coal, and that if he must pay fifty cents per acre commissions, he will be getting only $10.50 per acre.But Runnion says he had authority, orally given, shortly after the second option was signed, to sell the surface along with the coal at $3.50 per acre; and Runnion's testimony on this point, and Morrison's denial of it is purely a jury question.But the first option fixed the value of the fee at $11, and the coal at $7.50, per acre, thus showing that Morrison, at that time, only ten days before, valued the surface at $3.50 per acre.This fact appears to corroborate Bunnion, at least as to value placed by Morrison on the surface.
The second option clearly abrogated the first one; it was a new proposition changing time of acceptance and terms of payment, and was wholly independent of the first.And the oral agreement to let the surface go along with the coal, at $3.50 per acre, did not affect the option contract for the coal, and constitutes; no defense to plaintiff's claim for commissions for the sale of the* coal at $7.50 per acre.
Runnion admits that he had no written contract with Morrison, authorizing him to sell the coal in the two tracts of land owned by Hall and...
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