Ward v. McQueen

• Decision Date: 28 May 1904
• Citation: 13 N.D. 153,100 N.W. 253
• Court: North Dakota Supreme Court
• Parties: WARD & MURRAY v. McQUEEN.

13 N.D. 153

100 N.W. 253

WARD & MURRAY

v.McQUEEN.

Supreme Court of North Dakota.

May 28, 1904.

Syllabus by the Court.

1. The denial of a motion to direct a verdict is not available as error when further testimony is introduced and the motion is not renewed.

2. A real estate broker, with whom land is listed for sale under an ordinary listing contract, is entitled to the commission provided for in his contract, when he presents to the owner a purchaser who is ready, willing, and able to purchase upon the terms specified in the listing contract, or upon modified terms which are assented to by the owner; and the refusal of the owner to consummate the sale upon the terms to which he has assented will not defeat the agent's right to his commission.

Appeal from District Court, Steele County; Charles A. Pollock, Judge.

Action by Ward & Murray against James McQueen. Judgment for plaintiffs. Defendant appeals. Affirmed.C. S. Shippy and Morrill & Engerud, for appellant. E. J. McMahon and F. W. Ames, for respondents.

YOUNG, C. J.

This action is brought by a firm of real estate brokers to recover the sum of $1,040, which they claim is due to them as commission for the sale of 1,040 acres of land owned by the defendant, which he had listed with them for sale. The defendant admits that he listed the lands with plaintiffs, but denies that they made or consummated a sale in accordance with the listing contracts or otherwise. The listing contract was in writing, and fixed the selling price at $16 per acre, net, to the defendant, and gave to the plaintiffs the excess of the selling price above that sum as commission, and prescribed the terms upon which the purchase price was to be paid. At the close of the case a verdict was directed for the plaintiffs for the full amount claimed. This appeal is from the judgment.

The errors specified in the statement of case as ground for reversal are (1) the court's refusal to direct a verdict for defendant, (2) the direction of the verdict for plaintiffs, and (3) the exclusion of certain testimony. The first assignment, namely, the ruling upon defendant's motion for a directed verdict cannot be reviewed. The record shows that, after the motion was denied, defendant introduced further testimony and did not renew his motion. It has been repeatedly held by this court that: “Error cannot be predicated upon a refusal to direct a verdict at the close of the plaintiffs' case, when testimony is thereafter offered by the defendant. The error, if any exists, is waived unless the motion is renewed at the close of the testimony.” First Natl. Bank of Fargo v. Red River Val. Natl. Bank of Fargo, 9 N. D. 319, 83 N. W. 221;Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000;Colby v. McDermont, 6 N. D. 495, 71 N. W. 772;Tetrault v. O'Connor, 8 N. D. 15, 76 N. W. 225.

Did the court err in directing a verdict for plaintiffs? We think not. The evidence shows, without dispute, that plaintiffs negotiated a sale of the land in question to J. Donald, B. F. Egan, and S. Voorhies for $17 per acre, and upon terms of payment which were assented to by the defendant. A written contract of purchase and sale, embodying the terms thus agreed upon, and assented to by the defendant, was executed in the defendant's presence by the plaintiffs and the purchasers, and $100 was then paid by the purchasers to the plaintiffs, pursuant to the terms of the written contract, and the said purchasers were then, and have ever since been, ready, willing, and able to comply with their contract. This shows a full performance by plaintiffs of the duties of their employment under the listing contract, and entitled them to their commission. True, the agency contract did not give the plaintiffs authority to bind the defendant by a written contract, and the contract which they executed with the purchasers could not therefore be specifically enforced against him, for it is well settled that the agency of real estate brokers under contracts like that involved in this case extends only to procuring purchasers who are acceptable to the vendors, or who are prepared to comply with the conditions of sale proposed by the vendors to their brokers, and does not include authority to execute written contracts binding upon the vendors. Brandrup v. Britten, 11 N. D. 376, 92 N. W. 453;Ballou v. Bergsvendsen, 9 N. D. 285, 83 N. W. 10. The rule is that “a real estate agent or broker, when duly employed as such, is entitled to his commission, when he has procured a party ready, able, and willing to purchase upon the owner's terms, although the agent has made no binding contract of sale with the purchasers.” Scott v. Clark, 3 S. D. 486, 54 N. W. 538;McLaughlin v. Wheeler (S. D.) 47 N. W. 816;Buckingham v. Harris, 10 Colo. 455, 15 Pac. 817;Doty v. Miller, 43 Barb. (N. Y.) 529;Delaplaine v. Turnley, 44 Wis. 31;Moses v. Bierling, 31 N. Y. 462;...