Tonkin-Clark Realty Co. v. Hedges

• Decision Date: 25 June 1913
• Citation: 24 Idaho 304,133 P. 669
• Parties: TONKIN-CLARK REALTY CO., Respondent, v. CLEM HEDGES, Appellant
• Court: Idaho Supreme Court

133 P. 669

24 Idaho 304

TONKIN-CLARK REALTY CO., Respondent, v. CLEM HEDGES, Appellant

Supreme Court of Idaho

June 25, 1913

MOTION FOR A NEW TRIAL-WAIVER OF ERROR IN NOT GRANTING A NEW TRIAL-TELEPHONE MESSAGE-ADMISSIBILITY-EVIDENCE-WEIGHT-CREDIBILITY OF WITNESS.

1. Where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support the defense and makes a case upon the merits, the court or jury have a right to consider the whole case and the motion for a nonsuit is waived.

2. Where T. has a conversation with H. over a telephone line between two towns, and T. is called as a witness in a controversy between T. C. R. Co., of which T. was the president, and H., with reference to a sale and exchange of property owned by each of said parties, to which such conversation referred, such evidence of T. in identifying the party with whom the conversation was had when taken into consideration with other evidence in the case, is admissible in evidence to be considered by the jury in determining whether or not the conversation was between T and H., and there was no error in the court's admitting such evidence.

3. The evidence of D., called for the purpose of identifying H., who was defendant in the suit, as being at a certain place on a certain day, when objected to as not tending to sustain the verdict, presents a question which the jury alone was called upon to determine in arriving at the verdict in the case, and was not a question to be determined by the court. This evidence might aid other evidence, and the evidence altogether might be sufficient to sustain the verdict although standing alone it might not sustain the verdict.

4. The evidence in this case held to be sufficient to sustain the verdict and judgment.

5. Where evidence as to whether or not a person making a contract is the agent of another party is of a substantial character, which shows that the agent was acting for the defendant and made the contract, and that the person with whom the contract was made made the contract upon the solicitation of the agent, and that the person for whom the agent acted accepted the contract made and accepted the benefits which resulted from the contract, such party cannot evade or defeat the authority of the agent in making said contract.

6. The law is well settled in this state that where a party employs a real estate broker to sell a piece of property at a stipulated price, and the broker procures a purchaser who purchases such property, or is able and willing to purchase such property upon the terms given to the agent by the owner or where the purchaser's attention was first called to the desire of the owner of the property by the broker, and thereafter he purchases the property, the broker is entitled to his commission.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

An action for commission for services as a broker on a sale of real estate. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

Davidson & Davidson and O. J. Hood, for Appellant.

If the witness was acquainted with the defendant's voice, his testimony that he recognized his voice over the telephone would have been admissible as evidence, and it might constitute proof of his identity, but there was no proof of recognition of defendant's voice. (Holzhauer v. Sheeny, 127 Ky. 28, 104 S.W. 1034; Swing v. Walker, 27 Pa. Super. Ct. 366; Rueckheim Bros. v. Ser Vis Ice Cream & Candy Co., 146 Ill.App. 607; Gardner v. Hermann, 116 Minn. 161, 133 N.W. 558.)

Earle C. Miller and J. B. Eldridge, for Respondent.

The trial court's order denying the defendant's motion for a nonsuit at the close of plaintiff's evidence is not reviewable in an appeal from a judgment entered in the case where defendant, after his motion for a nonsuit has been denied, introduces evidence. (Shields v. Johnson, 12 Idaho 329, 85 P. 972; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546.)

The fact that the voice at the telephone is not identified does not render the conversation inadmissible. (Wolfe v. Missouri Pacific R., 97 Mo. 473, 10 Am. St. 331, 11 S.W. 49, 3 L. R. A. 539; Globe Printing Co. v. Stahl, 23 Mo.App. 451; Rock Island P. R. v. Potter, 36 Ill.App. 590; Sullivan v. Kuykendall; 82 Ky. 483, 56 Am. Rep. 901; Banning v. Banning, 80 Cal. 271, 13 Am. St. 156, 22 P. 210; Davis v. Walter & Son, 70 Iowa 465, 30 N.W. 804; Guest v. Hannibal & St. Joe R., 77 Mo.App. 258; Taylor v. The Robert Campbell, 20 Mo. 254; Oskamp v. Gadsden, 35 Neb. 7, 37 Am. St. 428, 52 N.W. 718, 17 L. R. A. 441; People v. McKane, 143 N.Y. 455, 38 N.E. 950; Gardner v. Hermann, 116 Minn. 161, 133 N.W. 558.)

It is sufficient, to entitle a real estate broker to his commission, that his efforts were the procuring cause of the sale, that through his agency the purchaser was brought into communication with the seller and that a sale resulted therefrom. (Phillips v. Brown, 2 Idaho 62, 120 P. 454; Wood v. Broderson, 12 Idaho 190, 85 P. 490; Hajner v. Heron, 165 Ill. 242, 46 N.E. 211; Mechem on Agency, sec. 966; Marlatt v. Elliott, 69 Kan. 477, 77 P. 104; Smith v. Anderson, 2 Idaho 495, 537, 21 P. 412; Buckingham v. Harris, 10 Colo. 455; 15 P. 817; Nolan v. Swift, 111 Mich. 56, 69 N.W. 96; Griswold v. Pierce, 86 Ill.App. 406; Goffe v. Gibson, 18 Mo.App. 1; Hambleton v. Fort, 58 Neb. 282, 78 N.W. 498.)

STEWART, J. AILSHIE, C. J., SULLIVAN, J., Concurring.

OPINION

STEWART, J.

This action was brought by the plaintiff against the defendant to recover the sum of $ 699.27 for services on an alleged sale of real estate owned by the defendant and alleged to have been listed for sale and sold to A. H. Krulish and Charles W. Krulish. The answer denies the allegations of the complaint, and alleges that the defendant listed the property involved with the A. L. Murphy Company, Ltd., a corporation engaged in the real estate business, and through such agency the property was sold to the same parties alleged in the complaint as being the purchasers through the agency of plaintiff.

The case was tried before a jury and a verdict was rendered for the sum of $ 699.27 and costs. Judgment was rendered in accordance with the verdict. This appeal is from the judgment.

The appellant assigns as error that the court erred in overruling defendant's motion for a nonsuit. Upon this alleged error it is sufficient to refer to the following cases wherein this court has determined the sufficiency of this error: Shields v. Johnson, 12 Idaho 329, 85 P. 972; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546. In these cases it is held that where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support his defense and makes a case upon the merits, the court or jury has a right to consider the whole case and the motion for a nonsuit is waived.

The appellant combines all the assigned errors except the motion for a nonsuit in the following contentions:

(1) The alleged conversation between J. O. Tonkin and defendant was inadmissible, and does not sustain the verdict and judgment. There is no merit in this assignment of error for the following reasons: (a) The judgment is not based wholly upon the conversation of Tonkin and defendant over the telephone. There are other facts in the case which in our judgment show that the defendant did list the property owned by him, and the appellant brought the attention of Krulish Brothers to the fact that the property was for sale or exchange for the property that was owned by Krulish Brothers; (b) The jury were the judges of the credibility of the evidence and the witnesses and the weight of evidence, and Tonkin testified that he had a conversation with the defendant over the telephone on the 21st day of July, 1911; this was only one fact which constituted the evidence which was submitted to the jury; (c) Tonkin is also corroborated by the evidence of Doyle and other evidence which clearly established that J. W. Hedges was the agent of the defendant, and the defendant ratified the acts of J. W. Hedges and accepted the benefits of his acts by conveying the property to Krulish Brothers. In the evidence of Tonkin he testifies, that when Tonkin called over the phone he asked for John Hedges, and the answer was, "this is Clem Hedges." This admission of Clem Hedges, when considered with the other evidence of the sale, identifies the party talking as Clem Hedges, and was acted upon and recognized thereafter in making the conveyance of the defendant's property to the very parties that the appellant was negotiating with after the property was listed with the plaintiff, and the jury were the judges as to whether or not the person talking over the phone was Clem Hedges or J. W. Hedges, notwithstanding Clem Hedges denies the same. This question of recognizing evidence of conversations over the telephone line is well recognized by the courts generally. In Wolfe v. Missouri P. R. Co., 97 Mo. 473, 10 Am. St. 331, 11 S.W. 49, 3 L. R. A. 539, the supreme court of Missouri says: "The courts of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication in relation to his business through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in...