Schwartze v. Yearly

• Decision Date: 02 July 1869
• Citation: 31 Md. 270
• Parties: SOPHIA F. SCHWARTZE v. THOMAS C. YEARLY.
• Court: Maryland Court of Appeals

31 Md. 270

SOPHIA F. SCHWARTZE v. THOMAS C. YEARLY.

Court of Appeals of Maryland

July 2, 1869

Appeal from the Court of Common Pleas.

This was an action brought by the appellee in the Court of Common Pleas, in 1868, to recover the sum of $250, alleged to be due to him by the appellant, as compensation for his services in effecting the sale of certain land, in August, 1866, alleged by the appellee to have been sold through his efforts.

The defendant offered the following prayers:

1st. That although the jury believe from the evidence that the plaintiff was employed by the defendant to make the sale upon which this suit is based, and that the plaintiff introduced the parties who purchased the property in question, yet the plaintiff is not entitled to recover from these facts alone nor at all, unless the jury shall also believe from the evidence that such introduction made by the plaintiff was of service to the defendant in making the sale.

2nd. That if the jury believe from the evidence, that prior to the commencement of the negotiations, which led to the sale upon which this suit is based, the plaintiff's authority to sell had been revoked by the defendant, which revocation need not be express, but may be inferred by the jury from the circumstances, and the property in question withdrawn from the plaintiff, placed for sale in the hands of C. I. Ditty as the defendant's agent, and that there was no subsequent employment of the plaintiff by the defendant other than by a reference to the said Ditty, then the plaintiff, although employed by Ditty, is not entitled to recover, unless the jury also believe that Ditty was expressly authorized by the defendant to employ the plaintiff in his name.

3rd. That although the jury shall believe from the evidence that the plaintiff was employed by the defendant, either directly or through an agent authorized to delegate his authority, the plaintiff is not entitled to recover, unless the jury also believe that the plaintiff did occupy his time and render services in effecting said sale by the defendant, and that said sale was finally effected by the defendant in consequence of the services of the said plaintiff, and that the plaintiff's agency was the immediate procuring cause of said sale by the defendant; and in determining whether or not the plaintiff rendered services to the defendant in effecting said sale, and whether the plaintiff's agency was such procuring cause of said sale, the jury may consider the natural and probable effect, independent of the plaintiff, upon the minds of the purchasers introduced by the plaintiff, of public notices for sale, calculated to draw the attention of the said purchaser, set up on the property in question, should the jury find that such notices were set up by other parties than the plaintiff, or those acting under him; and that generally in determining the character of the plaintiff's services and agency in this matter, the jury may consider all facts and circumstances proved by the evidence tending to show the operation in effecting the sale in question of other influences, unmixed with and distinct from the agency of the plaintiff.

4th. That if the jury find from the evidence that between the opening of negotiations and the final sale of the defendant's property, the plaintiff, by comparisons unfavorable to the defendant's property, was endeavoring to induce the purchasers whom he had introduced, and who eventually bought the defendant's property, to buy other property instead, or that the plaintiff made any statement or representation to the said purchasers, tending to induce them to buy other property rather than the defendant's, then the plaintiff is not entitled to recover.

5th. That although the jury shall believe from the evidence that the plaintiff was employed by the defendant to effect the sale in question, and introduced the parties who eventually bought the property, yet the plaintiff is not entitled to recover, if the jury also believe that the sale was effected in consequence of other influences, unmixed with and entirely different from what was furnished by the introduction of the said purchasers to the defendant by the plaintiff.

6th. That although the jury shall believe from the evidence that the plaintiff was employed by the defendant to effect the sale in question, if the jury shall also believe that prior to the commencement of negotiations, the purchasers introduced by the plaintiff, and who bought the property, had themselves employed the plaintiff to procure for them such property as they required, and that the plaintiff, in pursuance of the employment, commenced to treat with the defendant for the purchase of the property; or if the jury shall believe that at any time during the pendency of the negotiations, the plaintiff was, in respect to this purchase and sale, in any way in the employ, or acting as agent, of the said purchasers, (beyond the power or authority to bind them to a sale by a memorandum,) or that the plaintiff was acting in the interest of the said purchasers, then the plaintiff is not entitled to recover, whether the said purchaser directed the plaintiff to treat specially for the purchase of defendant's property or not.

7th. If the jury shall believe from the evidence that the plaintiff's authority was revoked, and the property withdrawn from him and placed in the hands of C. I. Ditty for sale, as set forth in the defendant's second prayer, and that there was no subsequent employment of the plaintiff by the defendant, except through the said Ditty, and that Ditty expressly declared to the plaintiff that he was only authorized to sell at $1,000 per acre, and that a special contract and agreement was then made between the plaintiff and Ditty, by which the plaintiff was to receive $250 commission, provided he procured a purchaser at $1,000 per acre, then the plaintiff is not entitled to recover, unless the jury also find that he did introduce a purchaser at the price named, and that a sale at that price was prevented by fault of the...