Stensgaard v. Smith

• Decision Date: 17 February 1890
• Citation: 43 Minn. 11,44 N.W. 669
• Parties: STENSGAARD v SMITH.
• Court: Minnesota Supreme Court

43 Minn. 11

44 N.W. 669

STENSGAARDvSMITH.

Supreme Court of Minnesota.

Feb. 17, 1890.

(Syllabus by the Court.)

1. The plaintiff received from the defendant a writing, unilateral in form, and signed only by the defendant, declaring that, in consideration of the plaintiff agreeing to act as agent for the sale of certain land, he (defendant) thereby gave to plaintiff the exclusive right for three months to sell the same, and promised to pay a stated commission for making a sale. Instrument construed as not being a contract, for want of mutuality, but as conferring present authority to sell the land, but revocable at any time before a sale should be effected, unless plaintiff should complete a contract by such an acceptance of the defendant's offer as would place him under obligation to act as agent for the period named.

2. The mere receiving of this writing by plaintiff did not import an agreement on his part to so act as agent, nor did the fact that he tried for a month to sell the land fix upon him that obligation, for such conduct is referable to the naked present power to sell, and proof of such facts by plaintiff was insufficient to sustain an averment of a contract entered into.

Appeal from district court, Ramsey county; KELLY, Judge.

Willis, Nelson & Speel and O. H. Hubbard, (John W. Willis and Charles A. Willard, of counsel,) for appellant.

Kueffner & Fauntleroy, for respondent.

DICKINSON, J.

This action is for the recovery of damages for breach of contract. The rulings of the court below, upon the trial, were based upon its conclusion that no contract was shown to have been entered into between these parties. We are called upon to review the case upon this point. The plaintiff was engaged in business as a real-estate broker. On the 11th of December, 1886, he procured the defendant to execute the following instrument, which was mostly in printed form: “St. Paul, Dec. 11, 1886. In consideration of L. T. Stensgaard agreeing to act as agent for the sale of the property hereinafter mentioned, I have hereby given to said L. T. Stensgaard the exclusive sale, for three months from date, the following property, to-wit: [Here follows a description of the property, the terms of sale, and some other provisions not necessary to be stated.] I further agree to pay said L. T. Stensgaard a commission of two and one-half percent. on the first $2,000, and two and one-half per cent. on the balance of the purchase price, for his services rendered in selling of the above-mentioned property, whether the title is accepted or not, and also whatever he may get or obtain for the sale of said property above $17,000 for such property, if the property is sold. JOHN SMITH.” The evidence showed that the plaintiff immediately took steps to effect a sale of the land, posted notices upon it, published advertisements in newspapers, and individually solicited purchasers. About a month subsequent to the execution by the defendant of the above instrument, he himself sold the property. This constitutes the alleged breach of contract for which a recovery of damages is sought.

The court was justified in its conclusion that no contract was shown to have been entered into, and hence that no cause of action was established. The writing signed by the defendant did not of itself constitute a contract between these parties. In terms indicating that the instrument was intended to be at once operative, it conferred present authority on the plaintiff to sell the land, and included the promise of the defendant that, if the plaintiff should sell the land, he should receive the stated compensation. This alone was no contract, for there was no mutuality of obligation,nor any other consideration for the agreement of the defendant. The plaintiff did not by this instrument obligate himself to do anything, and therefore the other party was not bound. Bailey v. Austrian, 19 Minn. 535, (Gil. 465;)Tarbox v. Gotzian, 20 Minn. 139, (Gil. 122.) If, acting under the authority thus conferred, the plaintiff had, before its revocation, sold the land, such performance would have completed a contract, and the plaintiff would have...