Ward v. Morrow

• Decision Date: 27 October 1926
• Docket Number: No. 7295.,7295.
• Citation: 15 F.2d 660
• Parties: WARD et ux. v. MORROW.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 660 (1926)

WARD et ux. v. MORROW.

No. 7295.

Circuit Court of Appeals, Eighth Circuit.

October 27, 1926.

Emmett C. Ryan, of Aberdeen, S. D. (L. T. Van Slyke and L. W. Crofoot, both of Aberdeen, S. D., on the brief), for plaintiffs in error.

E. J. Grover (Amos N. Goodman, of Aberdeen, S. D., on the brief), for defendant in error.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

Defendant in error, plaintiff below, filed suit in the District Court of the United States for the District of South Dakota, to recover commission as a real estate broker upon the sale of certain property in Aberdeen, S. D. Her cause of action was thus stated:

"The defendants herein are residents of the city of Aberdeen, Brown county, S. D., and reside in their home over the Orpheum Theater in the Raddison Hotel, and that the plaintiff herein is a resident of the city of Minneapolis, Hennepin county, Minn., and is a nonresident of the state of South Dakota, and that this action is for more than $3,000. The defendants in above matter are husband and wife.

"That on or about the 1st day of August, 1919, the defendants employed the plaintiff as a broker to procure a purchaser and renter for certain real estate and personal property, owned by the defendants, described as follows: Lot 4, block 6, all in the original plat, city of Aberdeen, Brown county, S. D., lot 6, of Ward's replat of lots 1, 2, and 3, and block 6, in the city of Aberdeen, Brown county, S. D., and all of the personal property being situated in their building, over the New Raddison Café, situated on lot 12, block 6, original plat, city of Aberdeen, S. D., and all of the personal property situated in their building and in the bedrooms over the Orpheum Theater, situated on lot 5, block 6, original plat, city of Aberdeen, S. D., which is owned by them, and the lease of the bedrooms that contain the personal property over the New Raddison Café, situated on lot 12, block 6, original plat, city of Aberdeen, S. D., and over the Orpheum Theater, situated on lot 5, block 6, original plat, city of Aberdeen, S. D., for a term of years to run concurrent with the lease on the restaurant, and which is to expire in 1920 — at a price of not less than $145,000, for the real estate and personal property and $100 per month for the rental of the bedrooms over the New Raddison Café, situated on lot 12, block 6, original plat, city of Aberdeen, S. D., and over the Orpheum Theater, situated on lot 5, block 6, original plat, city of Aberdeen, S. D., and agreed to pay the plaintiff for her services in procuring such purchaser and lessor, 5 per cent. of the full amount of the purchase price and 5 per cent. on the full amount that they would receive by reason of the lease to the full term of years, making a total of $7,610, which was the reasonable value of said services.

"That in pursuance of said contract, and or or about the 1st day of January, 1920, the plaintiff found and procured a purchaser, to wit, one A. H. Brown, ready, willing, and able to purchase the said property, at said price, and introduced the said A. H. Brown to the defendants herein, for the purpose of selling the said real estate and personal property and leasing the other property to the said A. H. Brown.

"That thereafter, and on the 18th day of June, 1923, the defendants thereupon sold and conveyed the said premises and personal property and lease to the said A. H. Brown for the sum of $145,000, and leased the said property as hereinbefore set forth, for the sum of $100 per month for about six years, said lease to run concurrent with the lease for the restaurant, known as the New Raddison Café. But no part of plaintiff's said commission has been paid, although due demand has been made for the same.

"That the defendants are now justly indebted to this plaintiff in the sum of $7,610, no part of same has been paid, although duly demanded."

To this complaint defendants filed answer denying the contract set forth in the complaint, admitting that they were the owners of the property in question; that they had at some time in the year 1919, or early in the year 1920, employed the plaintiff to procure, within a reasonable time, a purchaser for said Raddison Hotel, including the furniture and equipment contained in that building and the bus used in connection with said hotel, for the aggregate price of $150,000 upon terms which would be satisfactory to the defendant B. B. Ward; the other features of the employment as set out in the complaint were denied. It was admitted that on or about the 18th day of June, 1923, the defendant B. B. Ward contracted to sell to A. H. Brown, for the sum of $145,000, lot 4 in block 6 of the original plat of Aberdeen and lot 6 of B. B. Ward's replat of lots 1, 2, and 3 of block 6 of said original plat of Aberdeen, being the Raddison Hotel building, and the hotel furniture and equipment therein located, including the bus used in connection with said hotel, and also the furniture situated in the rooms over the New Raddison Café and in six of the rooms over said Orpheum Theater, and that the defendant Kate Ward, joined with the defendant, B. B. Ward, as his wife, in executing the contract for the sale of said real estate, and defendants further admitted that as a part of the same transaction the said A. H. Brown leased for a term of about six years, at a rental of $100 per month, the rooms over the New Raddison Café and six of the rooms over the said Orpheum Theater, and that the defendants joined in the lease thereof accordingly.

For defense the answer alleged the employment of plaintiff in error as thereinabove set forth; that plaintiff in error failed to procure any purchaser who was ready, willing, and able to buy said property for the sum of $150,000, on terms satisfactory to B. B. Ward, within a reasonable time, or at all, and that after the lapse of a reasonable time, during which plaintiff was unable and failed to procure a purchaser for the property at that price, and upon said terms, or at any price and terms which were satisfactory, the employment was terminated by said defendant Ward, and the contract rescinded; that such rescission was consented to by plaintiff in error; that thereafter the said contract of employment was treated by both plaintiff in error and by defendants in error as of no further force and effect; that said defendants abandoned for a period of several years any intention of selling said property; that after a lapse of about three years defendants again decided to sell said property, and employed another agent as broker to find a purchaser therefor, and that on or about the said 18th day of June, 1923, through the efforts of plaintiffs in error and with the co-operation of such new broker, a purchaser was found, as hereinabove set forth; that said sale and lease, which were negotiated on or about the 18th day of June, 1923, were neither of them procured by defendant in error but by plaintiffs in error with assistance of the new broker, long after the original employment had been terminated, rescinded, and abandoned; that a commission was paid to said new broker for procuring a purchaser for the property.

Upon trial a verdict was rendered in favor of defendant in error in the sum of $8,208.59. At the close of the evidence plaintiffs in error moved to dismiss upon the ground "that there is no allegation or proof in this case to show that this suit, or the cause of action involved therein, are within the jurisdiction of this court." This motion was denied, and thereupon plaintiffs in error moved for a directed verdict in their favor. This motion also was denied.

The errors assigned fall under the following heads: (1) The action of the court in denying the motion of defendants to dismiss the action for want of jurisdiction. (2) In denying the motion of defendants for a directed verdict. (3) Errors in the charge. (4) Abuse of discretion in overruling defendants' motion for a new trial based upon alleged newly discovered evidence. (5) Error in permitting plaintiffs in error to be called as adverse parties and to be examined as if under cross-examination before being called to testify in their own behalf. (6) Alleged errors in the admission and rejection of testimony.

The question of jurisdiction first demands attention. It is contended by plaintiffs in error that "there was no averment in the complaint as to the citizenship of the plaintiff or proof to show that the suit or cause of action involved therein was within the jurisdiction of the court." That jurisdiction depends upon diversity of citizenship. It must be conceded upon the face of the complaint that the allegation of citizenship is insufficient. However, if in the testimony the requisite diversity is sufficiently made to appear, the trial court may, upon application, under section 954 of the Revised Statutes (Comp. St. § 1591), permit an amendment to conform with the proofs. No such application was made, and plaintiffs in error earnestly insist that no such proof was made. A careful and exhaustive examination of the record sustains plaintiffs in error in this respect. An extremely liberal construction of the testimony of plaintiffs in error, taken in conjunction with their pleading, may perhaps, although narrowly, establish their citizenship in South Dakota; that of defendant in error remains undetermined; in fact, her testimony adds nothing to the insufficient allegation of the complaint that she is a resident of the city of Minneapolis, Minn.

At the beginning of her direct examination she says "that she resides at present in Minneapolis and did at the commencement of this action." Further on she testified: "That she formerly lived in South Dakota; that when she was a young girl she lived with her parents south of Aberdeen, at Rudolph; * * * that she had a real estate office in Minneapolis, when she was operating a real estate...