Shober v. Blackford

• Decision Date: 10 October 1912
• Citation: 127 P. 329,46 Mont. 194
• Parties: SHOBER v. BLACKFORD.
• Court: Montana Supreme Court

127 P. 329

46 Mont. 194

SHOBER v. BLACKFORD.

Supreme Court of Montana

October 10, 1912

Appeal from District Court, Fergus County; Sydney Sanner, Judge.

Action by J. H. Shober, Jr., against William M. Blackford, as administrator of Philip I. Moule. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed and remanded.

William Wallace, Jr., and John G. Brown, both of Helena, and R. F Gaines, of Missoula, for appellant.

J. A Walsh, of Helena, Blackford & Blackford and Ayers & Marshall all of Lewistown, for respondent.

BRANTLY C.J.

Action by plaintiff to recover a commission for his services as real estate broker. Philip I. Moule, a resident of Fergus county, Mont., died on March 18, 1909. Thereafter the defendant, having been appointed administrator of his estate, entered upon the discharge of his duties as such, and is now acting in that capacity. On July 24, 1907, the said Moule, being the owner of a large amount of real estate and other property and desiring to sell the same, employed the plaintiff to procure a purchaser upon the terms and subject to the conditions set forth in the following writing: "Bercail, Mont., July 24, 1907. I hereby list for sale with J. H. Shober, Jr., my ranch comprising about 13,000 acres at Bercail, Fergus county, Montana, together with all water rights, water ditches, etc., appurtenant to same and agree to furnish warranty deeds to said land at the price of five ($5.00) per acre net to me, to be paid as follows: All cash, or $2.00 per acre cash and balance ______ at 7% interest. And in consideration of said agent's work and expense incident to handling said land, paying commissions, etc., it is understood and agreed that he is to add any profit or commission that he deems advisable and if said property is sold to any one secured through his agency, or brought or sent by him that he will be entitled as a commission to the amount per acre which he adds to said net price of $5.00 per acre. It is understood that purchaser must buy the tools, implements, machinery, etc., now on said ranch at the price of $3,500. I also list for sale all stock on ranch which may be taken with ranch at the option of purchaser at prices to be agreed upon at the time of purchase. Should I decide to change the price on land I agree to give said Shober four months' time. See endorsement. [ Signed] Philip I. Moule."

It is alleged in the complaint, in substance, that the plaintiff accepted the employment thus tendered upon the terms and conditions specified, listed the property for sale, added to the net price of sale the additional sum of $1.50 per acre for his commission, notified the said Moule of his action, and thereupon expended time and incurred expense in advertising the property in an effort to secure a purchaser. The complaint further alleges:

"(5) The plaintiff through his own efforts as aforesaid, and the efforts of other persons who were working for him, to wit, of John E. O'Connor, brought said property to the attention of one ______ Giltinan, who was then desirous of either purchasing the same or procuring others with him to purchase the same, and that thereafter said Giltinan, with the purpose aforesaid, interested with himself one Lewis Penwell, of Helena, Mont., and they, the said Giltinan and said Penwell, thereafter entered into negotiations with said Moule for the purchase of said property, and to the end that the said property when purchased might be taken over by a corporation, they, the said Penwell and Giltinan, caused the said corporation to be organized, and as a result of their negotiations said property was sold and thereafter conveyed by said Moule to said corporation so organized by said Giltinan and Penwell on price and terms agreed upon between said Moule and said purchaser, and that said Moule never gave plaintiff any notice of his (said Moule's) purpose of changing the price of sale on said lands as fixed in said contract.

(6) That, when Giltinan was so interested in said lands, it was agreed between plaintiff's agent, said O'Connor, and said Giltinan, that whether he (said Giltinan) bought alone or with others or procured others to buy he, the said Giltinan, should have the benefit of one-third of the said commission of $1.50 per acre on the sale of said lands, and because thereof this plaintiff became entitled on said sale of said property as his commission therefor under said contract, to the sum of $1 per acre, or $13,000, and that said property was so sold on or about July 1, 1908, and that ever since until date said Moule or his estate has been indebted to this plaintiff in the said sum of $13,000, with interest thereon at 8 per cent. per annum from said last-named date, and that no part thereof has ever been paid."

After alleging that the plaintiff presented his claim to the defendant, as required by the statute, prior to the bringing of the action, the complaint concludes with the prayer for judgment for the sum of $13,000, together with interest and the costs of the action. The defendant interposed a general and special demurrer, which was by the court overruled. The answer puts in issue the material averments of the complaint, except that it is averred that a sale was made by Giltinan to a corporation organized by himself, and that in doing so and in making the sale he acted for himself. It also alleges affirmatively certain matters which are denied in the reply. These are not now of importance.

The evidence introduced tended to show that Moule listed his property with plaintiff under the terms and conditions stated in the written contract which was signed and delivered at the time at which it bears date; that he was subsequently notified by plaintiff of the amount added to the list price that the plaintiff prepared a prospectus and mailed 200 or 300 copies of it to persons who he thought might be seeking investments in lands; that he wrote many letters to persons residing in different parts of the state and elsewhere in an effort to find a purchaser; that his efforts continued from the date of the contract until May 5, 1908; that during this time he was in constant communication with Moule by letter; that O'Connor was employed by the plaintiff, with the knowledge of Moule, to assist him in securing a purchaser, making use of copies of the prospectus prepared by plaintiff; that in September, 1907, O'Connor, on behalf of plaintiff, interested Giltinan in the enterprise, agreeing to allow him one-third of the commission in case a purchaser could be found by him alone or with others; that he furnished Giltinan with a copy of the prospectus; that later Giltinan informed him that he had been unsuccessful in finding a purchaser among his friends in the East as he had hoped but that he was going to take up the matter with Moule and Penwell with the purpose of effecting a sale; that Moule was informed that Giltinan had become interested through O'Connor and was jointly engaged with O'Connor and the plaintiff in seeking a purchaser; that it was shown that Moule thereafter conveyed all the land by warranty deeds to the Giltinan-Penwell Ranch Company a Montana corporation doing business at Helena together with the stock and ranch equipment. Some of the land it appears was situated in Meagher county. It also appears that the number of acres conveyed was 13,500. There is no question, however, that the conveyances covered the identical land listed by Moule with the plaintiff. Moule never at any time advised the plaintiff that he had changed the price desired from that listed by him, except that on October 26, 1907, he wrote plaintiff that from and after November 10th following he would not sell for less than $5.25 per acre, because he intended at that time to purchase a school section upon which he held an option at the price of $10 per acre, and that it would be necessary for him to add to the listed price 25 cents per acre upon the whole acreage, in order to make up for the additional outlay thus made. He did not make this purchase, and thereafter so informed plaintiff. Giltinan did not inform either plaintiff or O'Connor of the sale to the Giltinan-Penwell Ranch Company, nor did Moule, though on May 5, 1908, the latter wrote to the plaintiff that he had made arrangements for a sale, but that it would be some weeks before it would be finally consummated. After receiving this notice and pending the Giltinan-Penwell Ranch Company deal, the plaintiff called the attention of Moule to the fact that Giltinan had been interested through his (plaintiff's) efforts. Moule at first said that plaintiff had no contract. He then said: "Oh, well, you don't need no contract. If the place is sold, I will make it all right with you." As a part of his case, plaintiff offered in evidence an authenticated copy of the certificate of incorporation of the Giltinan-Penwell Ranch Company, which bears date August 1, 1908, together with the minutes of the proceedings of the first meeting of its stockholders had on August 15th. There were also offered authenticated copies of the record of the proceedings of the directors of the company at their first meeting held on the same day, together with a list of the subscribers to the stock of the company. In offering this evidence plaintiff sought to show that Penwell was one of the organizers and became a director of the corporation; that both he and Giltinan were or became subscribers for stock; that Moule was also a subscriber; that at the meeting of the stockholders a proposition was submitted by Penwell and Giltinan for a sale to the company of "the ranch known as the Moule ranch in Meagher and Fergus counties this state" at a gross price of $141,500; that included in the offer were 13,500 acres of land, 11,300 sheep,...