Stead v. Erickson
| Decision Date | 06 February 1931 |
| Docket Number | 28,188 |
| Citation | 234 N.W. 678,182 Minn. 469 |
| Parties | H. W. STEAD v. ERIC S. ERICKSON |
| Court | Minnesota Supreme Court |
Defendant appealed from a judgment of the district court for Houston county, Finkelnburg, J. entered in favor of plaintiff for $772.19. Reversed.
Owner's signature to broker's contract not obtained by fraud.
1. Upon the issue of fraud in procuring defendant's signature to a contract employing plaintiff as his exclusive agent to sell defendant's farm upon a specified commission, to be paid even though defendant or any other person made a sale during the duration of the agency, the verdict is supported.
Whether contract was terminated by consent was for jury.
2. The court erred in not submitting to the jury the defense of a termination of the agency contract by mutual agreement before defendant made the sale.
Plaintiff entitled to commission if sale was made by anyone.
3. Although plaintiff did not have the exclusive right to sell the farm, his exclusive agency contract made defendant liable to pay commission to plaintiff if a sale was made by defendant or any other person.
New trial unnecessary when court's error caused no prejudice.
4. An error in a ruling or charge which apparently has not prejudiced appellant is not ground for a retrial of the action.
Duxbury & Duxbury and A. E. Sheridan, for appellant.
David A. McVeety, for respondent.
In this action to recover the agreed commission for the sale of defendant's farm of 240 acres plaintiff had a verdict, and defendant appeals from the judgment entered thereon.
On July 5, 1927, plaintiff, a real estate agent or broker, for the named consideration of one dollar secured from defendant a written contract appointing plaintiff "exclusive agent to make sale" of defendant's farm in Fillmore county for $125 an acre, $1,000 down, $10,000 cash March 1, and balance secured by mortgage for ten years at five per cent. The contract provided for a commission of one dollar per acre on the sale price of $125 per acre;
The answer admitted that defendant sold the farm to one Kiehne on October 18, 1927, for a price of $130 per acre, but alleged that as part payment he accepted a small farm, which he has since sold for $10,000, and that he has been paid only a part of that sum and only a part of the balance of the $130 an acre; and set up two defenses: First, that the written agency contract was obtained by plaintiff's fraudulently misrepresenting that it terminated absolutely on September 15, 1927, as it was orally agreed; and second, that the contract was terminated and canceled by agreement of the parties on or about September 1, 1927.
There was no motion for a directed verdict. There was a motion for a new trial, in which the verdict was assailed as unsupported and it is challenged here. But the jury having found that no fraud or deceit was practiced in obtaining defendant's signature to the contract, the here important parts of which are above set out, it cannot be successfully maintained that the verdict is without support as the issues were submitted by the court. The contract as written, together with the admissions in the answer of a sale, gave plaintiff a right to a commission. In the deal with Kiehne the farm was priced at $130 per acre, and the answer admits the amount realized is at least $29,715, though not all has yet been paid. No defense was sought to be made on the ground that the sale was not on the same terms as plaintiff was authorized to make. And we are of opinion that under the terms of this agency, if plaintiff was the procuring cause of the sale by securing the buyer Kiehne, he is entitled to his commission though defendant made the sale for a price or terms different from those in the agency contract. Hubachek v. Hazzard, 83 Minn. 437, 86 N.W. 426; Jaeger v. Glover, 89 Minn. 490, 95 N.W. 311; MacGregor v. Persha, 174 Minn. 127, 218 N.W. 462. In Austin v. National Cas. Co. 125 Minn. 390, 396, 147 N.W. 281, it was said:
"Where the owner so reduces price or changes terms and makes a sale, the object of the employment is accomplished and the agent is entitled to his pay."
Especially is that so when the reduced sale price is such as entitles the agent to some commission under the terms of the employment.
The more serious proposition is the error assigned upon the omission of the court to submit to the jury the defense of the termination of the agency by mutual agreement on or about September 1, 1927. The only testimony touching a termination is given by defendant. He testified that the last days of August he and plaintiff drove out to the farm to get the tenant, Holger, to hold off plowing until the 15th of September so that defendant would not get in trouble with regard...
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