Sonnesyn v. Hawbaker
| Decision Date | 31 July 1914 |
| Docket Number | 18,630 - (160) |
| Citation | 148 N.W. 476,127 Minn. 15 |
| Parties | C. N. SONNESYN v. HENRY HAWBAKER |
| Court | Minnesota Supreme Court |
Action in the district court for Watonwan county to recover $2,640 for loss of one-half of the profits to be derived from the sale of certain premises. The case was tried before Pfau, J who denied defendant's motion for a directed verdict, and a jury which returned a verdict for $3,331.71 in favor of plaintiff. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, defendant apealed. Affirmed.
Partnership -- verdict sustained by jury.
1. Plaintiff procured the sale of a tract of land from a third party to defendant, the contract being taken in the name of defendant. The evidence sustains the finding of the jury that it was agreed between plaintiff and defendant that the land was bought for their joint benefit, and that, on plaintiff's procuring a sale, the parties should divide the net profits.
Partnership -- statute of frauds.
2. Such a contract was in the nature of a partnership or joint adventure, and was not the sale to plaintiff of an interest in land, and was not within the statute of frauds.
Verdict negatives fraud of plaintiff -- offer of evidence.
3. Evidence was received upon the question whether plaintiff committed a fraud upon the vendor by acting as agent and purchasing in his own interest, without the consent of the vendor, and the question was submitted to the jury, and they were instructed that if such conditions existed their verdict must be for defendant. The verdict for plaintiff is a finding that there was no such fraud, and defendant cannot obtain relief on that ground. The rejection of a certain offer of evidence of fraud and the denial of a motion to amend to allege such fraud, held not prejudicial error in view of the fact that it does not appear that further material evidence could have been produced.
Evidence of collateral facts.
4. The reception of certain evidence as to collateral facts was within the discretion of the trial court and was properly received as corroborative of plaintiff's testimony.
Demand for money -- evidence admissible.
5. Evidence of a demand for money to which no reply is made may be received when the demand is made under such circumstances that a reply would ordinarily be made.
New trial -- remarks of counsel.
6. Determination of the question whether improper remarks of counsel were prejudicial rests largely in the discretion of the trial court. Counsel made improper remarks in his address to the jury. The court directed him to desist and he did so and the court directed the jury not to consider such matters as were the subject of the remarks. The case presented does not warrant this court in granting a new trial on this ground.
Record on appeal -- original verdict conclusive.
7. The original verdict filed with the clerk is part of the record proper, and is no proper part of a settled case. If the verdict as incorporated in the settled case conflicts with the original verdict as so filed, the latter will be regarded in this court as the true verdict.
J. L Lobben, S. B. Wilson, E. J. Hawbaker and Henry W. Mead, for appellant.
Hammond & Farmer, for respondent.
Plaintiff was engaged in the land business at Butterfield, Watonwan county, Minnesota. Defendant was a resident of Illinois, a man of means and an investor in southern Minnesota lands. Plaintiff and defendant had had some land dealings prior to the transaction here in question. In 1909 one Peter Falk had for sale a farm near Butterfield. It had been on the market for some time at $36 an acre. In the summer he went to Dakota and, before going, raised the price to $45 an acre. Plaintiff had the land listed for sale but had no exclusive agency. It was listed with another agent also. Plaintiff had previously tried to interest defendant in this land. On defendant's arrival in Butterfield, in September, 1909, the subject of buying this land came up again. Defendant was not willing to negotiate at the new price of $45 an acre. After several conferences between plaintiff and defendant it was decided to prepare a contract of sale running from Falk to defendant at the old price of $36 an acre, to have defendant sign it and send it on to Falk with a check for $1,000, as a proposition which he might accept by signing and returning the contract. This was done, and Falk returned the contract signed. This contract called for further payments and delivery of a deed March 1, 1910.
It is conceded that there was some further negotiation between plaintiff and defendant as to the resale of the land. The parties are not agreed as to the nature of this negotiation. Plaintiff testified that it was agreed "he would go in with me on a half of the profits, and advance the money at 6 per cent interest, provided I would stand the loss, if there was any." Defendant's version is that he told plaintiff
Plaintiff claims that in November, 1909, he made a resale of the land to one Fletcher Brown at $50 an acre, less $2 an acre commission to be paid another agent, took from Brown a written contract and received from him $500 earnest money; that he reported this sale to defendant and defendant then said he preferred to keep the land and to pay plaintiff the amount he would receive on consummation of such a sale, and that this was agreed to. Defendant denies this and denies that he was ever informed of a sale to Brown, or to anyone, or that any resale was ever made.
The jury found for plaintiff.
1. The questions whether the agreement was as plaintiff claims, whether the sale to Brown was in fact made, and whether defendant made the subsequent agreement to pay plaintiff the amount here demanded, are pure questions of fact with ample evidence to support a finding in favor of plaintiff. We accept the jury's determination of these facts in plaintiff's favor as final.
2. Defendant contends that the agreement as testified to by plaintiff was one for the conveyance to him of an interest in land, and was void because not in writing. It appears to us that the contract as testified to by plaintiff created a partnership or a joint adventure. Defendant contributed the capital. Plaintiff contributed his services and assumed some financial obligation. The technical name of the relationship created is not important. It was a joint enterprise for their mutual benefit. The agreement was a valid and binding one. It was not necessary that it be in writing. It is well settled in this state that an agreement between two parties to purchase real property for the purpose of selling again for a joint profit is a contract in the nature of a partnership and is valid though not in writing. Newell v. Cochran, 41 Minn. 374, 43 N.W. 84; Stitt v. Rat Portage Lumber Co. 98 Minn. 52, 107 N.W. 824. An agreement to share profits or losses arising from the purchase and sale of real estate is not a contract for the transfer or conveyance of an interest in land. 20 Cyc. 237; Bates v. Babcock, 95 Cal. 479, 30 P. 605, 16 L.R.A. 745, 29 Ann. St. 133; Babcock v. Read, 99 N.Y. 609, 1 N.E. 149; Bruce v. Hastings, 41 Vt. 380, 98 Am. Dec. 592. It is not important that the contract related to only one piece of land. The character of the contract and the relationship it creates between the parties depends upon its terms, and not upon the magnitude or extent of the transactions covered. Stitt v. Rat Portage Lumber Co. 98 Minn. 52, 107 N.W. 824; Irvine v. Campbell, 121 Minn. 192, 141 N.W. 108. If the contracts as testified to by plaintiff were in fact made, they then are valid and binding contracts.
3. The next contention is that, if the purchase of this land from Falk was part of a joint adventure, the contract was void because plaintiff was the agent of Falk, and a purchase in his own interest was contrary to good morals and public policy. We need spend no time discussing the proposition that an agent to sell cannot sell to himself, and if he does so the principal may declare the contract void. Whether one who is a partner in a purchase may avoid his partnership agreement on the ground that the negotiation is a fraud upon a third party may not be free from doubt, but we are not troubled with that question here. A real estate agent with whom land is listed for sale may buy from his principal if his principal so wills it. The court submitted to the jury the...
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