Schimmelpfennig v. Gaedke

• Citation: 27 N.W.2d 416,223 Minn. 542
• Decision Date: 09 May 1947
• Docket Number: No. 34345.,34345.
• Parties: SCHIMMELPFENNIG v. GAEDKE.
• Court: Supreme Court of Minnesota (US)

27 N.W.2d 416

223 Minn. 542

SCHIMMELPFENNIG v. GAEDKE.

No. 34345.

Supreme Court of Minnesota.

May 9, 1947.

Appeal from District Court, Todd County; Byron R. Wilson, Judge.

Action by B. W. Schimmelpfennig against Fred Gaedke for broker's commission on sale of realty. From an order denying plaintiff's motion for new trial after verdict for defendant, plaintiff appeals.

Reversed and new trial granted.

Charles W. Kennedy, of Wadena, and Jesse A. Schunk, of New York Mills, for appellant.

Logan O. Scow, of Long Prairie, for respondent.

PETERSON, Justice.

This is an appeal from the order denying plaintiff's motion for a new trial after verdict in favor of defendant.

The questions for decision are: (1) Whether as a matter of law a real estate broker procures a purchaser of land where he finds a prospective buyer, sends the buyer to the principal, informs the principal that the buyer is coming, and the buyer on the same day purchases the real estate from the principal at the price demanded by the principal; and (2) whether plaintiff, suing under a common count for the value of services rendered in procuring a purchaser for defendant's land, was entitled to have the jury determine whether he was entitled to recover under an express contract, and, if it found that there was no express contract, upon a quantum meruit, where plaintiff's evidence was to the effect that the services were rendered under an express contract to pay a certain percentage of the selling price and defendant's evidence was to the effect that there was no contract at all, but the evidence of both parties showed that the services were rendered under such circumstances that, if there was a contract, they were in performance thereof, and, if there was no contract, the defendant was liable upon a quantum meruit for the reasonable value thereof.

These questions arise out of a rather simple set of facts. Plaintiff, a real estate broker, alleged in his complaint that defendant was indebted to him in the sum of $250 for services rendered by plaintiff at defendant's request in the sale of certain real estate. Plaintiff's evidence was to the effect that defendant hired him to procure a purchaser of his farm for $5,000 and agreed to pay him, if successful, a commission of five percent for his services; that in August 1945 plaintiff had interested one Ole Lindelien as a prospective purchaser; that at the time Lindelien was a total stranger to defendant; that plaintiff went to defendant's farm, where he informed him that he had a "buyer," Lindelien; that he would send Lindelien out to his farm to discuss the matter with him; that afterwards as a result of plaintiff's efforts, Lindelien did go out to defendant's farm; that they had some negotiations, in which Lindelien offered $4,500 for the farm, which defendant declined; and that the parties then went to a nearby blacksmith shop, where negotiations were resumed, with the result that Lindelien bought the farm for $5,000, paying $600 down and the balance during the following November.

Defendant's answer was a general denial. His evidence was to the effect that he had not employed plaintiff as a broker, either as claimed by him or otherwise; that plaintiff called on him either on the day before or on the same day Lindelien agreed to purchase his land; that plaintiff then and there informed defendant that plaintiff was going to send Lindelien out to the farm; that Lindelien came for the purpose of buying the farm; that Lindelien told defendant that plaintiff had told him that the farm was for sale; and that as a result of the negotiations mentioned defendant sold the farm to Lindelien.

Upon the trial the court submitted to the jury the questions whether there was an employment of plaintiff by defendant to procure a purchaser and whether, if so, plaintiff procured a purchaser. The trial judge refused to submit the question whether, if there was no contract of employment, defendant was liable under the circumstances upon a quantum meruit. No complaint is made here concerning the submission of the question concerning the fact of employment; but plaintiff challenges the instructions submitting the question as to whether he procured a purchaser and the failure to submit the question whether defendant was liable upon a quantum meruit.

The instruction concerning procuring of the purchaser here challenged reads: "* * * The broker must do more than insert an advertisement in the for-sale column of a newspaper. He must do more than merely pass on the information that the property is for sale at a price. He must produce a buyer who is able, willing and ready to buy on the owner's authorized terms. He must bring that buyer and his principal together effectively. A broker who merely tells someone that another's property is for sale at a price cannot thereby fence off the deal as his own and collect a commission on it even though the one to whom he has passed the information does in fact contact the owner and purchases the property. The broker's services must have been the effective means of bringing about the actual sale. To prevail in this case plaintiff must prove that he produced a purchaser who was ready, willing and able to buy upon defendant's terms; that is, ready, able and willing to buy upon terms acceptable to defendant."

1. Where a real estate broker employed to procure a purchaser of land finds a customer ready, able, and willing to purchase on the terms proposed by his principal, brings the customer and the principal together or causes them to come together, and the customer purchases the land upon the principal's terms, the broker has procured the purchaser and earned the compensation (here, the commission) stipulated for such service. Meiners v. Kennedy, 221 Minn. 6, 20 N.W.2d 539. Where the facts are not in dispute that the broker did in fact find the customer, cause the customer and his principal to come together, and the customer purchases on the terms proposed by the principal, the broker is entitled to a peremptory instruction that he has procured the purchaser and earned his compensation. Here, the court should have directed the jury to return a verdict for plaintiff if it found that there was an employment as he claimed. Nokleby v. Docken, 134 Minn. 318, 159 N.W. 757.

The vice in the charge consists not only of the fact that it failed to instruct the jury that plaintiff had fulfilled his contract of employment, if he had one; but also that it in effect instructed the jury that he had failed to do so. Plaintiff's right to recover was based upon the facts that he discovered Lindelien as a buyer ready, able, and willing to buy; that he informed him that defendant's farm was for sale; that as a consequence plaintiff got him interested as a prospective customer; that plaintiff caused Lindelien and defendant to come together for the purpose of negotiating concerning the sale; and that as a result of such negotiations a sale resulted. All these facts were eliminated piecemeal by the charge as a basis for recovery. The insertion of the advertisement in a newspaper, if any, and the oral negotiations were eliminated as being in themselves insufficient. Then the fact that plaintiff caused Lindelien and defendant to come together, with the result that a sale occurred, was eliminated by the requirement of the charge that the broker "must bring that buyer and his principal together effectively." (Italics supplied.) Of course, plaintiff did not bring Lindelien and defendant together; but he did cause them to come together by sending Lindelien to defendant, and that is all that was required under the circumstances to entitle him to recover.

Part of the charge undoubtedly was taken from our decision in Carney v. John Hancock Oil Co., 187 Minn. 293, 295, 245 N.W. 367, 368, where we said: "* * * A broker does not earn his commission simply by telling one who afterwards purchases that a property is for sale. He does not thereby fence off the whole deal as a private preserve for himself." In that case, the language was appropriate as a forceful expression to emphasize that a broker does not earn his commission under a nonexclusive agency contract to procure a purchaser by simply mentioning to a prospective customer that the property is for sale according to certain terms, where he does not succeed in bringing together the customer and his principal, or...