Stauff v. Bingenheimer
| Decision Date | 03 March 1905 |
| Docket Number | Nos. 14,173 - (209).,s. 14,173 - (209). |
| Parties | FRANK H. STAUFF v. GEORGE H. BINGENHEIMER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover from defendant $4,556.74 and interest, claimed to have been earned as commissions in the sale of land under the contract set out in the opinion. The case was tried before Willard R. Cray, J., who directed a verdict in favor of defendant. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed. Reversed and new trial granted.
Arthur W. Selover, for appellant.
Flannery & Cooke, for respondent.
Action to recover commissions, which the plaintiff claims he earned as agent for the defendant in the sale of certain tracts of land pursuant to an alleged contract, which is in these words:
Minneapolis, Minn. Aug. 11, 1903
1. Mr. F. H. Stauff
Dear Sir: — It is agreed that I will deed to A. C. Lamport N. E. ¼ section 19-136-80; S. ½ sec. 25-136-81; S. ½ of S W. ¼, and S. W. ¼ of S. E. ¼, sec. 3-138-81; all of sec. 5-139-81, Morton Co., N. D., for a stated consideration of $7,493.70; will send deed to same to Lake City bank at Lake City, for delivery upon payment for my account of $4 per acre, or, $4,986.96; balance of consideration to be paid or delivered to you.
2. I also agree to make deed to Oscar Anderson and Oliver Carlson to sec. 11-136-81, Morton Co., N. D. and send same to same bank, with same directions, stated consideration $3,840, with directions to deliver same to your order upon receipt for my account of $4 per acre, cash, or $2,560. Balance of consideration to go to you.
3. I also agree to deed or assign contracts to you personally the S. E. ¼ sec. 19-136-80; East half, S. W. ¼ and the E. ½ of N. W. ¼ sec. 9-138-81; stated consideration $5,000, actual consideration, $4 per acre, or $2,880, cash.
4. You shall have credit for $480 on sale to Frutel, when the same is closed; credit to be given on your own purchases.
5. If I can get back the S. W. ¼ of 12-139-82 will deed it at $4 to anyone you say, you to have all over that. If I cannot get it back, will allow you a credit on your purchases of $320 cash.
6. Will deed or assign contracts on your own purchases leaving amount unpaid to N. P. Ry. or N. W. Imp. Co. for you to pay, and which will reduce by such amount the balance you will have to pay for those assignments or deeds; cash to be paid in St. Paul Exchange.
7. Direction shall be given the bank to deliver the deeds or any of them at any time between now and close of business on the 25th day of September, 1903.
Geo. H. Bingenheimer
Accepted
F. H. Stauff.
We have numbered the several provisions of the contract for convenience.
The complaint alleged several separate and independent sales of different parcels of land. The answer admitted that the defendant signed the contract, and alleged, in effect, that its terms were never performed by the plaintiff, and that he abandoned it. At the close of the evidence each party moved the trial court to direct a verdict in his favor. The motion of the defendant was to the effect that the jury be instructed to return a general verdict for him for the reason that upon all of the evidence the plaintiff was not entitled to recover any sum whatever. The court denied the plaintiff's motion, and granted that of the defendant. A verdict was returned accordingly. The plaintiff appealed from an order denying his motion for judgment in his favor notwithstanding the verdict, or for a new trial. The principal question presented by the record for our decision is whether the court erred in directing a verdict for the defendant.
1. The first contention of the defendant to be considered is that, each party having requested the trial court to direct a verdict in his favor, the plaintiff waived his right to have any question of fact submitted to the jury, and is now estopped from claiming that the case should have been submitted to the jury.
The rule contended for has been adopted in some other jurisdictions. 6 Enc. Pl. & Pr. 703. But it is not consistent with the uniform practice in this state from the beginning. A motion or a request for a directed verdict presents under our practice a question of law only. Such a motion or request is frequently made by counsel at the close of the evidence for the purpose of securing a ruling of the trial court upon some special question of law which is deemed to be decisive of the case, or for otherwise conserving the rights of his client. Now, to hold that when a party makes such a motion the opposite party, by making a counter motion for a directed verdict, may deprive him of the right to a jury trial in case the court should differ from him as to the law, would in practice result in great injustice. It would be a strained and unjust construction to hold in such a case that the party first making the motion thereby admitted that, if his own motion be denied, the motion of his adversary should be granted, or that he waived a jury trial, and consented that the trial judge might decide the case in accordance with the preponderance of the evidence. It cannot be fairly assumed, from the mere fact that a party makes a motion or request for a directed verdict in his favor, that he concedes anything except for the purposes of his motion. He admits for such purpose the credibility of the evidence against him, and every fact and inference which may be fairly drawn therefrom in favor of his adversary. If, however, upon such concession, the court rules that the party making the motion is not, as a matter of law, entitled to a verdict in his favor, and he does nothing to waive his rights except to make the motion, it is then the duty of the court to submit the case to the jury, unless the opposite party is, upon the evidence, as a matter of legal right, entitled to a verdict in his favor.
We therefore hold that a motion by each party to an action that a verdict be directed in his favor cannot be construed as a waiver of the right to have the facts passed upon by the jury, or an agreement to submit them to the trial judge in case the motion be denied. Poppitz v. German Ins. Co., 85 Minn. 118, 88 N. W. 438; Thompson v. Brennan, 104 Wis. 564, 80 N. W. 947.
In this case the plaintiff did nothing to waive his rights except to move the court to direct a verdict in his favor. On the contrary, he excepted at the time to the action of the court. It is obvious, then, that if the evidence made a case for the jury as to plaintiff's right to recover for any commissions whatever, the court erred in directing a general verdict for the defendant.
2. It is further urged by the defendant that there was no consideration for the contract of August 11, 1903, as there was no mutuality of obligation, in that the plaintiff was not bound by its terms to do anything. The plaintiff gave evidence on the trial tending to show that the plaintiff had been acting as the agent of the defendant for the sale of land for some time before the written contract was entered into, and had then procured purchasers for the separate tracts of land — one to Gerhart Frutel, one to Ben Gurnes — and on each claimed he was entitled to a commission of $480; that he had also found purchasers for other tracts, namely, A. C. Lamport and Oscar Anderson and Oliver Carlson, who were ready to buy as...
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