Stotts v. Miller

• Decision Date: 21 October 1905
• Citation: 105 N.W. 127,128 Iowa 633
• Parties: E. S. STOTTS, Appellant, v. FRED N. MILLER
• Court: Iowa Supreme Court

105 N.W. 127

128 Iowa 633

E. S. STOTTS, Appellant, v. FRED N. MILLER

Supreme Court of Iowa, Des Moines

October 21, 1905

Appeal from Dallas District Court.--Hon. J. H. APPLEGATE, Judge.

ACTION to recover commission for the sale of real estate. Verdict and judgment for defendant. Plaintiff appeals.

Affirmed.

Cardell & Fahey, for appellant.

White Clarke & Clarke, for appellee.

OPINION

MCCLAIN, J.

Plaintiff alleges that he was employed, in connection with one J. K Olds, to find for defendant a purchaser for certain described real estate of defendant, on the basis of a specified price per acre, and upon terms satisfactory to defendant, and that the right of said Olds to compensation under the contract has been assigned to him, and he seeks to establish the right of himself and Olds to such compensation by alleging and proving that defendant entered into a binding contract with one Dilenbeck for the exchange of the property referred to for said land of Dilenbeck, situated in North Dakota. The contract between Dilenbeck and defendant was made "subject to inspection of land furnished by each party, if inspection is made within fifteen days. Otherwise, if the land is not inspected at once, the trade is considered closed."

The first error assigned is in an instruction of the court to the effect that the burden was on the plaintiff to establish the failure of defendant to examine the lands of Dilenbeck in North Dakota. Under the issues the burden unquestionably was on the plaintiff to make out a binding contract between Dilenbeck and defendant, and it is plain under the pleadings and the evidence that, unless this contract became binding by reason of the failure of defendant to examine the Dilenbeck land, there was no binding contract between the parties and no sale was made entitling the plaintiff to a commission, for it is conceded that defendant refused to accept the Dilenbeck land under the contract between them. As plaintiff's right to recover therefor would not be made out without proof that the contract between defendant and Dilenbeck became binding by reason of the failure of defendant to inspect the Dilenbeck land, we think it clear that, to entitle plaintiff to recover, this fact must be established affirmatively by him. The instruction was therefore correct. Other objections are made on account of failure to properly instruct the jury that the burden of showing an excuse for failure to inspect the Dilenbeck land was on the defendant, but what has just been said disposes of all such objections.

Complaint is also made of an instruction relating to the effect of evidence tending to show that Olds undertook to conduct defendant to the Dilenbeck land in North Dakota for the purpose of...