Spotswood v. Morris

• Decision Date: 06 June 1904
• Citation: 10 Idaho 129,77 P. 216
• Parties: SPOTSWOOD v. MORRIS
• Court: Idaho Supreme Court

77 P. 216

10 Idaho 129

SPOTSWOOD v. MORRIS

Supreme Court of Idaho

June 6, 1904

PLEADING-FACTS UNKNOWN TO PLAINTIFF-ELECTION BETWEEN COUNTS-SALE OF LAND-AGREEMENT FOR COMMISSION.

1. In an action to recover commission for the sale of real estate under circumstances where the exact legal nature of plaintiff's right and defendant's liability depends upon facts within the peculiar knowledge of the defendant the plaintiff may set forth the same single cause of action in several counts and with different averments so as to meet the possible proofs which will appear on the trial. In other words, when a plaintiff has two or more distinct and separate reasons for the right to the relief he asks, or when there is some uncertainty as to the ground of recovery, the complaint may set forth a single claim in several distinct counts.

2. Held, that the complaint states a cause of action.

(Syllabus by the court.)

APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.

Action to recover commissions for sale of real estate. Demurrer to complaint sustained and judgment of dismissal entered. Judgment reversed.

Reversed and remanded with instructions. Costs of this appeal awarded to the appellants.

I. N Smith, for Appellant.

Where the facts, constituting the cause of action, are peculiarly within the knowledge of the defendants, the plaintiff is permitted to state his cause of action in as many forms as may be necessary to meet the contingencies of proof. A motion to elect should be denied. (Rucker v. Hall, 105 Cal 425, 38 P. 962; Whitney v. Railway Co., 27 Wis. 327; Pomeroy's Remedies and Remedial Rights, sec. 576; Boone on Code Pleading, sec. 26; Wilson v. Smith, 61 Cal 209; Longprey v. Yates, 31 Hun, 432 (overruling former position); Leonard v. Roberts, 20 Colo. 90 36 P. 880; Supervisors of La Pointe v. O'Malley, 46 Wis. 35, 50 N.W. 521. See discussions of rule, 5 Ency. of Pl. & Pr. 321-323.) The rule extends to permitting one cause of action to be stated both upon an express and an implied contract. (5 Ency. of Pl. & Pr., p. 324.) The rule is based upon the principles of equity. (5 Ency. of Pl. & Pr., p. 322, note "Double Aspect.") Where there is any conflict between the rules of law with the rules of equity, the rules of equity "shall prevail." (Idaho Rev. Stats., sec. 4020.) The supreme court of Idaho has sustained a complaint pleaded both in express and implied contract, to recover commissions on a real estate transaction. (Smith v. Anderson, 2 Idaho (Hasb.), 537, 21 P. 412.) If the facts be that the broker has a prospective customer with whom he is negotiating, and the owner, while such negotiations are pending, sells the property to that customer, clearly the owner is liable for the broker's commission, notwithstanding the broker had not found a purchaser ready, able and willing to take the property at the terms on which he held the property for sale. (Von Tobel v. Stetson & Post Mill Co., 32 Wash. 683, 73 P. 788 (790); Smith v. Anderson, 2 Idaho (Hasb.), 537, 21 P. 412; Plant v. Thompson, 42 Kan. 664, 16 Am. St. Rep. 512, 22 P. 726; Ratts v. Shepherd, 37 Kan. 20, 14 P. 496; Stewart v. Mather, 32 Wis. 344; Woods v. Stephens, 46 Mo. 555; Fischer v. Hall, 91 Ind. 243; Lockwood v. Rose, 125 Ind. 588, 25 N.E. 710; Sibbald v. Iron Co., 83 N.Y. 378, 38 Am. Rep. 441; Reynolds v. Tompkins, 23 W.Va. 229.) It is also well settled that in every case where the broker who has been employed to sell, introduces a purchaser to the owner, and through such introduction negotiations are begun which result in final sale to such person, the broker is entitled to his commission, although in point of fact the sale may have been made by the owner. (Jones v. Adler, 34 Md. 440; Woods v. Stephens, 46 Mo. 555; Hafner v. Herron, 165 Ill. 242, 46 N.E. 211; Bash v. Hill, 62 Ill. 216; Loyd v. Matthews, 51 N.Y. 124; Lyon v. Mitchel, 36 N.Y. 235, 93 Am. Dec. 502; Young v. Hughes, 32 N.J. Eq. 372; Wilson v. Mason, 158 Ill. 304, 49 Am. St. Rep. 162, 42 N.E. 134; Keys v. Johnson, 68 Pa. 42; Pope v. Beals, 108 Mass. 561; Desmond v. Stebbins, 140 Mass. 339, 5 N.E. 150; Lincoln v. McClatchie, 36 Conn. 136; Dreisbeck v. Rollins, 39 Kan. 268, 18 P. 187; Scott v. Clark, 3 S. Dak. 486, 54 N.W. 538 (540); Scott v. Patterson, 53 Ark. 49, 13 S.W. 419; Fiske v. Soule, 87 Cal. 313, 25 P. 430; Leonard v. Roberts, 20 Colo. 88, 36 P. 880; Wood v. Wells, 103 Mich. 320, 61 N.W. 503.) The defendants are a joint-stock company--that is to say, a partnership as to a third person, so far as their liabilities are concerned. (Claggett v. Kilbourne, 1 Black, 346, 17 L.Ed. 213; 17 Am. & Eng. Ency. of Law, 2d ed., p. 636; Carter v. McClure, 98 Tenn. 109, 60 Am. St. Rep. 842, 38 S.W. 585, 36 L. R. A. 282; Robinson v. Smith, 3 Paige, 222, 24 Am. Dec. 212.) An unincorporated joint-stock company is governed by the legal rules applicable to partnerships. (Allen v. Long, 80 Tex. 261, 26 Am. St. Rep. 735, 16 S.W. 43; Bullard v. Kenney, 10 Cal. 60; Butterfield v. Beardsley, 28 Mich. 412; 17 Am. & Eng. Ency. of Law, 2d ed., p. 637, note 2 et seq.; Webster v. Clark, 34 Fla. 637, 43 Am. St. Rep. 217, 16 So. 601, 27 L. R. A. 126; Spaulding v. Stubbins, 86 Wis. 255, 39 Am. St. Rep. 888, 56 N.W. 469; Goldsmith v. Eichold Bros. & Weiss, 94 Ala. 116, 33 Am. St. Rep. 97, 10 So. 80.)

James E. Babb and Daniel Needham, for Respondents.

The court did not err in sustaining the motion requiring plaintiffs to elect between the several counts set forth in the complaint. (Pomeroy's Code Remedies, 3d ed., secs 73, 576; People v. Slocum, 1 Idaho 62.) The complaint contains four counts, setting up claims for recovery, but whether they are really one claim stated in different forms, or separate and distinct claims, it is difficult on reading the complaint to discover. The rule is that it is considered no variance from the proof if the facts show a substantial right to recover under the allegation, and the necessity of having various forms of stating the same cause of action is thus fully obviated. (Smith v. Anderson, 2 Idaho (Hasb.), 537, 21 P. 412.) Even if it had been error to order the plaintiffs to elect, they having preferred to make the election rather than have the entire complaint stricken out, made their election in open court, and chose to rest upon the second count of the complaint and the balance of the complaint was thereupon stricken out. The plaintiffs by their election waived any error in the order requiring them to elect. (2 Cyc. 644, 645, 1088; Murphy v. Russell, 8 Idaho 133, 67 P. 425; Pence v. Durbin, 1 Idaho 550.) It appears in paragraphs 3 to 7 of the complaint that the defendants constituted a voluntary unincorporated association, which is styled a "joint-stock company." (17 Am. & Eng. Ency. of Law, 2d ed., pp. 636-638, entitled "Joint-Stock Companies"; 4 Ency. of Pl. & Pr., p. 309, same title; 29 Century Digest, pp. 1511, 1512, same title; 4 Cyc. 308-310; Sullivan v. Campbell, 2 N.Y.S. (2 Hall) 295; McConnell v. Denver, 35 Cal. 365, 95 Am. Dec. 107; Willis v. Greiner, (Tex. Civ. App.), 26 S.W. 858.) On rehearing the court says: "It was such as the president and secretary had no authority to make. There is no evidence to show that the contract was ratified by the directors." (11 Am. & Eng. Ency. of Law, 2d ed., p. 1038, note 1.) The association, however, had the power to make the contract sued on and to confer the authority upon its president and secretary; but it is not shown that it ever did so. The secretary having been designated as the agent to make the sale, he has no authority to delegate his office and engage another to do so, and anyone relying upon a contract involving such a delegation, as the plaintiffs do in this case, must fail. Plaintiffs urge that authority to sell subject to direction of shareholders implies authority to delegate the power to another to do so and to make such delegation without the direction of the shareholders. (Jones v. Brand, 20 Ky. Law Rep. 1997, 50 S.W. 679; Mechem on Agency, sec. 185; 1 Am. & Eng. Ency. of Law, 378; Barret v. Rhem, 6 Bush, 466; Rudd v. Railway Co., 7 Ky. Law Rep. 823; Birch v. Powell, 15 Ky. Law Rep. 455; Bonwell v. Howes, 2 N.Y.S. 717; Corroll v. Tucker, 21 N.Y.S. 952. See, also, concerning joint-stock companies, M. W. Powell Co. v. Finn, 198 Ill. 567, 64 N.E. 1036, 1037; In re Pittsburg Wagon Works Estate, Appeal of Kountz, 204 Pa. 432, 54 A. 316; Appeal of Merchants' Fund Assn., 136 Pa. 43, 20 A. 527, 9 L. R. A. 421.) There are some authorities which apparently go so far as to hold that where a purchaser is introduced, if the seller makes a sale even for a less price than the list price with the agent, the agent is entitled to his commission. The authorities so holding, however, are very limited in number and are not founded on reason or on a careful discrimination of the authorities upon which they purport to be based. Authorities are frequently cited as so holding which contain no support for such a proposition. The authority which comes nearest holding this is Hubachek v. Hazzard, 83 Minn. 437, 86 N.Y. 426. Different authorities submit that there is no doctrine worthy of consideration creating a liability for commission where property has been listed at a definite price, unless a purchaser is produced willing to pay that price, unless only there is some wrongful or immoral conduct of the defendant in fraudulently selling at a lower price and attempting to make it appear that the purchaser was not one willing to pay the list price. In view of the multitude of cases upon these subjects, defendants' counsel will refer to only a sufficient number to clearly illustrate the principles to the court. One of the most extensive discussions of this question is found in the unanimous opinion of the court of appeals in Sibbald v....