Stiewel v. Lally

CourtSupreme Court of Arkansas
Citation115 S.W. 1134,89 Ark. 195
Decision Date01 February 1909

115 S.W. 1134

89 Ark. 195


Supreme Court of Arkansas

February 1, 1909

Appeal from Pulaski Circuit court, Second Division; Edward W. Winfield, Judge; affirmed.

Judgment affirmed.

Moore, Smith & Moore and Morris M. Cohn, for appellant.

1. The two writings were complementary to each other, and are unambiguous. They limit the authority to sell to thirty days and prescribe the terms of sale. There was no evidence to support a verdict for a commission of 2 1/2 per cent., or what was a reasonable compensation.

2. The case should have been taken from the jury. To entitle a real estate agent to commissions, there must be a contract of employment. 18 Col. 496; 33 P. 163; 79 Tex. 454; 15 S.W. 483; 36 Id. 805; 54 Minn. 341; 56 N.W. 40; 29 S.W. 438; 45 P. 524; 96 Ky. 576; 29 S.W. 438. He must recover only in accordance with such contract. Mechem on Agency, § 966; 45 P. 676; 80 Ark. 254; 81 Id. 96; 83 Id. 202. Where the contract is relied on, no recovery can be had on quantum meruit, nor where the contract is unperformed; if performed, recovery can only be had thereon. 3 Ark. 324; 4 Id. 577; 38 Id. 102; 74 Id. 24; 81 Id. 96; 5 Id. 651-7-8; 2 Wall. 1-7. The written contract cannot be varied by parol. Arkansas cases supra; Mechem on Agency, § 966; 53 Wisc. 41. See also 204 U.S. 228; 83 N.Y. 378; 55 Ark. 574-6.

3. Appellees had no license as brokers, and their contract was not enforceable. 33 Ark. 436; 77 Id. 580; 1 Martin, Ch. Dec. 134, 1153; 145 U.S. 421; Greenhood, Public Policy, 580 et seq.; 32 S.E. 408, 413; 54 S.C. 266; 50 Ga. 530; 15 S.W. 862; 57 Miss. 51; 57 Id. 531; 63 Id. 244; 70 Id. 113.

4. It was error to refuse instructions 8, 10 and 12, asked by defendant. It was the duty of the court to interpret the contracts and declare the effect. 81 Ark. 96; 55 Id. 576; 80 Id. 254; 204 U.S. 239 and cases supra. Also 9 Ark. 501-506; 24 Id. 212; 38 Id. 102.

5. It was error to modify instruction 6. A party is not even bound to third persons as to matters of which he had no knowledge, done by third persons for his ostensible benefit. 76 Ark. 563; 64 Id. 217. Such services are gratuitous if unknown to the party to be bound. 20 Johns. 28; 2 H. & N. 564; 1 T. R. 20; 120 U.S. 227; Mechem on Agency, § 600. Also in modifying the 9th instruction asked by defendant. Mechem, Agency, §§ 968; 61 Md. 343; 83 N.Y. 378-381; 204 U.S. 208-9.

6. Improper evidence was admitted. If suit is brought under one contract, evidence as to another is incompetent. 68 Ark. 225; 2 Id. 397; 46 Id. 87; 57 Id. 512; 57 Id. 595; 24 Id. 371; 11 Id. 134.

Gray & Gracie, Robert Martin and Murphy, Coleman & Lewis, for appellees.

1. There was a contract of employment, and appellees produced a buyer willing and able to buy. The limitation in the power of attorney does not govern the contract; it was never so understood by the parties. 81 Ark. 96; 83 Id. 202; 55 Id. 574. The cases cited by appellant are different from this case. The sale was made to parties procured by appellees, under terms which they submitted, and the fact that the sale was made on terms "wholly unknown to them" does not relieve him of paying the commission. 53 Ark. 49; 21 N.Y.S. 440; 71 Conn. 599.

2. Failure to take out real estate broker's license does not bar a recovery. The liquor cases are not applicable. It is only where the statute or law avoids the contract that the failure avoids the contract. 145 U.S. 421; 36 Iowa 546; 57 Miss. 51; 34 S.W. 450.

3. There was no error, either in giving, refusing or modifying instructions. 55 S.E. 899; 147 F. 218; 97 S.W. 838; 101 Id. 1131; 53 Ark. 49; 71 Conn. 599.

4. There was no improper evidence admitted to appellant's prejudice. 1 Gr. Ev. [16 Ed.] p. 688-9, § 563 E.; 31 Ark. 364; 17 Ark. 203; 112 Ala. 59; 76 Id. 42; 116 Id. 68; 78 F. 460; 56 Id. 434; 7 Id. 477; 30 Ind. 438.

MCCULLOCH, J. HILL, C. J., dissenting.

OPINION [115 S.W. 1135]

[89 Ark. 198] 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, Arkansas.

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 [115 S.W. 1136] said property to one Daugherty for the sum of $ 450,000; that, by and through the efforts of plaintiffs, said purchaser, Daugherty, 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 Daugherty at the instance and request of defendant, that defendant accepted Daugherty 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 [89 Ark. 199] 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 sole 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 Daugherty for $ 450,000, or that Daugherty accepted an offer made to him by plaintiffs for the purchase of the property, or that defendant and Daugherty 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 Daugherty, 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 Daugherty and one Albers, together with a large quantity of merchandise, for the sum [89 Ark. 200] 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 plaintiffs 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 Daugherty 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 2 1/2 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...

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