Stiewel v. Lally

• Decision Date: 01 February 1909
• Citation: 115 S.W. 1134
• Parties: STIEWEL v. LALLY et al.
• Court: Arkansas Supreme Court

115 S.W. 1134

STIEWEL v. LALLY et al.

Supreme Court of Arkansas.

February 1, 1909.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by M. A. Lally and another against Abe Stiewel. From a judgment for plaintiffs, defendant appeals. Affirmed.

Morris M. Cohn and Moore, Smith & Moore, for appellant. Gray & Gracie, Robert Martin, and Murphy, Coleman & Lewis, for appellees.

McCULLOCH, J.

This is an action at law, instituted by M. A. Lally and L. S. Cherry against Abe Stiewel to recover a sum alleged to be due as commission on sale of a coal mine and lands owned by the latter, situated in Johnson county, Ark. In the first paragraph of the complaint the plaintiffs alleged that the defendant entered into a written contract with them, a copy of which contract is exhibited with the complaint, whereby the defendant employed them to sell said property for a sum not less than $350,000, and agreed to pay them, as compensation for their said services, all of the purchase price in excess of said sum; that they negotiated a sale of said property to one Dougherty for the sum of $450,000; that by and through the efforts of plaintiffs said purchaser, Dougherty, and the defendant were brought together, and defendant conveyed said property to him for the price of $437,000. They prayed judgment for $100,000 as compensation. In the second paragraph of the complaint the plaintiffs alleged that they negotiated a sale of said property to Dougherty at the instance and request of defendant; that defendant accepted Dougherty as a purchaser, and sold the property to him; that said sale was accomplished through the efforts of plaintiffs, and that their services in negotiating said sale were reasonably worth the sum of $100,000, which it is claimed they were entitled to recover even if it should be found that they were not entitled to recover on the written contract set forth in the preceding paragraph. The contract set forth in and exhibited with the first paragraph of the complaint reads as follows: "It is agreed between Abe Stiewel, principal, and Martin A. Lally and L. S. Cherry, agents, that if the said agents shall make a sale of the lands and Eureka Coal Mines at Spadra, Johnson county, state of Arkansas, under a power of attorney executed by the said principal to said agents, bearing even date herewith authorizing them to sell said property for the sum of four hundred and twenty-five thousand dollars ($425,000.00), the said principal will allow the said agents, as full compensation for making said sale, all the purchase money received by him in excess of the sum of three hundred and fifty thousand dollars ($350,000.00), the said excess to constitute the sale and entire compensation to be asked or demanded by said agents of said principal. Witness our hand and seals this 26th day of March, 1903. Abe Stiewel, L. S. Cherry, Martin A. Lally." The power of attorney referred to in the contract is not mentioned in, nor exhibited with, the complaint, but it was introduced in evidence at the trial. According to its terms plaintiffs were appointed by defendant as his agents and attorneys to sell the property in question for the sum of $425,000, and it was provided that "said agency is to continue thirty (30) days from this date," the date of the instrument being March 26, 1903, the same date of the contract. Defendant in his answer to the first paragraph of the complaint admitted that he executed the contract exhibited with the complaint, but denied that it was in force at the time of the alleged sale of the property; denied that he entered into any contract whereby the sale of said property was to be made by plaintiffs, and compensation was to be paid to them whether the transfer was directly through them, or whether the purchaser and defendant were brought together by plaintiffs; denied that plaintiffs negotiated the sale of the property to Dougherty for $450,000, or that Dougherty accepted an offer made to him by plaintiffs for the purchase of the property, or that defendant and Dougherty were brought together through the efforts of plaintiffs, or that defendant sold the property for the sum of $437,000. For answer to the second paragraph of the complaint the defendant denied that plaintiff negotiated a sale of property to Dougherty, or that they brought him (defendant) and the purchasers together or had any connection with the sale of the property which he subsequently made. He alleges that he sold the property in July, 1904, to Dougherty and one Albers, together with a large quantity of merchandise, for the sum and price of $400,000, and that he realized on the sale of the mine and land only the sum of $367,000, and that neither of the plaintiffs had anything to do with the sale. Defendant also pleaded, in bar of plaintiff's right to recover commission on the sale, an ordinance of the city of Little Rock, where plaintiff and defendant resided, requiring all agents and brokers engaged in the sale of real estate to obtain a license from the city. He alleged that plaintiffs had never obtained a license, as required by said ordinance, and that the alleged services were performed by plaintiffs, if at all, in the city of Little Rock. He also pleaded as a further defense that prior to the institution of this action, plaintiff Cherry and one Charles B. Hood had instituted an action against him in the court of common pleas of Hamilton county, Ohio, for the recovery of commission on the sale of this property, and that said action was still pending. It is undisputed that the defendant sold and conveyed the property in July, 1904, to Dougherty and Albers for $400,000, this price including a stock of merchandise which was not embraced in the terms of plaintiff's alleged employment, and that, after deducting the price of the merchandise, the price received by defendant for the property which plaintiffs claim to have been employed to sell was $388,000. A trial of the case before a jury resulted in a verdict in favor of the plaintiffs in the following form: "We the jury find for the plaintiff in the sum of 2½ per cent. commission, based on the sum of three hundred and eighty-eight thousand dollars ($388,000) which amounts net to nine thousand seven hundred dollars ($9,700)." Judgment was rendered in accordance with the verdict, and the defendant appealed.

Appellee Lally testified, in substance, that he acted as appellant's agent for the sale of the property in the year 1902, and continued to do so after the execution of the written contract mentioned in the complaint; that after this contract was entered into he negotiated with numerous parties for the sale of the property, among whom were Dougherty, with whom Albers was associated; that he had considerable correspondence with Dougherty, beginning in June, 1903, and extending up to September 8, 1903, when the last letter was written to him by Dougherty, saying that he and his associate, Albers, could not purchase the property then, but would take up the proposition with him again after the first of the year (1904) and invited further correspondence; that he informed appellant from time to time of his continued effort to sell the property, and showed appellant his correspondence with Dougherty and others as the negotiations progressed; and that appellant made no objection to him continuing the negotiations after the expiration of the 30-day limit in the contract, but on the contrary, encouraged him to continue his efforts to sell the property, and gave him information concerning the output of the coal mine. He testified, further, that after the correspondence with Dougherty ended, he continued his effort to sell to other parties up to April, 1904. Appellee Cherry testified to various efforts that he made to sell the property, and, among other things, that he was notified by a business associate of his in Columbus, Ohio, that Albers and a Mr. Gilbert from Ohio would be at Spadra, Ark., on June 17, 1904, to look at this property; that he met those parties at Spadra, and offered to show them through the property, but they told him they were familiar with it; that he talked with Albers about the price, etc., and that Albers told him that he (Albers) would not give more than $425,000 for it; that he informed appellant of this a few days later, and stated to the latter that Albers would buy the property, and that appellant replied that he hoped he would do so. He testified that he continued his efforts up to July, 1904, when the property was sold, and that on July 1, 1904, he received a message from Gilbert, asking that appellant meet him, and that he showed this message to appellant, who instructed him to wire Gilbert saying that he would meet him. He admitted having written a letter to appellant on June 13, 1905, claiming a commission of 2½ per cent. on the price of the property sold to Dougherty and Albers, and he explained this by saying he offered this by way of compromise. S. M. Savage testified that appellant gave him authority, during the spring of 1904, to sell the property, and told him during the summer of 1904 that he had also authorized Lally to sell it, and that Lally had sold it for $430,000 or $450,000. Lally was recalled, and testified that in June, 1903, he was trying to sell the property to one Nichols of New York, and received a letter from Nichols asking for an option for one week, and that at his request appellant wired Nichols giving the option. Appellant testified, giving in detail the negotiations leading up to the sale to Dougherty and Albers. He said that appellees had nothing to do with the sale or the negotiation with the purchasers, but that the purchasers were introduced to him by other persons. He denied that he encouraged appellees to continue their efforts to sell the property after the expiration of the time limit in their contract, but that on the contrary, he told Cherry to drop the matter, and have nothing more to do with selling the...