Wood v. Broderson

• Decision Date: 12 March 1906
• Citation: 85 P. 490,12 Idaho 190
• Parties: A. E. WOOD, Appellant, v. CLAUS F. BRODERSON, Respondent
• Court: Idaho Supreme Court

85 P. 490

12 Idaho 190

A. E. WOOD, Appellant, v. CLAUS F. BRODERSON, Respondent

Supreme Court of Idaho

March 12, 1906

BROKER'S COMMISSION FOR SALE OF REAL ESTATE-FINDINGS OF FACTS-INSUFFICIENCY OF EVIDENCE-CONFLICT IN EVIDENCE-PROCURING PURCHASER.

1. Where the court fails to find on all the material issues made by the pleadings, the judgment will be reversed unless a finding upon such issues would not affect the judgment entered.

2. The following finding held insufficient to support a judgment, to wit: "That all the issues of fact raised by the pleadings in this case are hereby found and decided in favor of the defendant and against plaintiff."

3. The issues made by the pleadings held sufficient to require a finding upon the rate of commission to be paid.

4. Where a party employs a real estate broker to sell a piece of real property at a stipulated price, and the broker procures a purchaser, who purchases the property at that price, the broker is entitled to his commission therefor.

5. Held, in this case that there is not a substantial conflict in the evidence such as to bring it within the rule that where there is a substantial conflict in the evidence, the findings of the court will not be disturbed.

(Syllabus by the court.)

APPEAL from District Court of the Seventh Judicial District for Canyon County. Hon. Frank J. Smith, Judge.

Action to recover commission for sale of real estate. Judgment for the defendant. Reversed.

Judgment reversed, a new trial granted, and cause remanded with costs in favor of appellant.

Richards & Haga, for Appellant.

Where the court fails to find on all the material issues, the judgment must be reversed. (Stanley v. Flint, 10 Idaho 629, 79 P. 815; Carson v. Thews, 2 Idaho 176 9 P. 605; Bowman v. Ayers, 2 Idaho 305, 13 P. 346; Armacaust v. Lindley, 116 Ind. 295, 19 N.E. 138; Haight v. Tyron, 112 Cal. 4, 44 P. 318.)

A finding "that all the issues of fact raised by the pleadings are hereby found and decided in favor of the defendant and against the plaintiff" is wholly insufficient and will not support the judgment. (Johnson v. Squires, 53 Cal. 37; Harlan v. Ely, 55 Cal 340; Krug v. Lux Brewing Co., 129 Cal. 322, 61 P. 1125; Ladd v. Tully, 51 Cal. 277; Polhemus v. Carpenter, 42 Cal. 375.)

It is immaterial whether the issues arise upon allegations in the complaint, and denials in the answer, or upon an affirmative defense pleaded in the answer and treated as denied by the plaintiff. (Spelling on Appellate Practice, sec. 591; Swift v. Canavan, 52 Cal. 417; Billings v. Everett, 52 Cal. 661, 663; Byrnes v. Claffey, 54 Cal. 155; Cassidy v. Cassidy, 63 Cal. 353.)

It is sufficient to entitle real estate agents to their commission if a sale is effected through their agency, as its procuring cause, although the sale may be made by the owner of the property, if by their exertion the purchaser and owner are brought together, and the sale results therefrom. (Matlatt v. Elliott, 69 Kan. 477, 77 P. 104; Norris v. Byrne, 38 Wash. 592, 80 P. 808; Smith v. Anderson, 2 Idaho 537, 21 P. 412.)

Where the price or other terms of sale are fixed by the seller, in accordance with which the broker undertakes to produce a purchaser, yet if, upon procurement of the broker, a purchaser comes with whom the seller negotiates, and thereupon voluntarily reduces the price of the thing to be sold, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so that the sale is consummated, or terms or conditions offered which the party proposing to buy is ready and agrees to accept, then, and in either such case, the broker will be entitled to his commission. (Stewart v. Mather, 32 Wis. 344, 349; Lincoln v. McClatchie, 36 Conn. 136; Potvin v. Curran, 13 Neb. 302, 14 N.W. 400; Woods & Piers v. Stephens, 46 Mo. 555; Schlegal v. Allerton, 65 Conn. 260, 32 A. 363; Ratts v. Shepherd, 37 Kan. 20, 14 P. 496; Warvelle on Vendors, sec. 230, and cases there cited; Adams v. Decker, 34 Ill.App. 17; Levy v. Coogan, 16 Daly, 137; Wilson v. Sturgis, 71 Cal. 226, 16 P. 722; Jones v. Henry, 15 Misc. 151, 152, 36 N.Y.S. 483; Wood v. Wells, 103 Mich. 320, 61 N.W. 503; Wetzell v. Wagoner, 41 Mo.App. 509, 516; Ward v. Cobb, 148 Mass. 518, 12 Am. St. Rep. 587, 20 N.E. 174.)

If a purchaser is found after the time limit fixed, and the principal, without objection, then deals with the purchaser so found, he waives the delay. (Mechem on Agency, p. 797; 23 Am. & Eng. Ency. of Law, 903.)

It is not necessary, in order for a real estate broker to recover his commission, that he should personally have conducted the negotiations between the seller and the purchaser, or that he should have been present when the bargain was completed; it is sufficient, to entitle him to his commission, that his efforts were the procuring cause of the sale and that through his agency the purchaser was brought into communication with the seller and that a sale resulted therefrom. (Hafner v. Herron, 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 537, 21 P. 412; Finnerty v. Fritz, 5 Colo. 174; Buckinham 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.)

In the absence of an agreement respecting the amount of compensation, or anything to show that the services were merely gratuitous, the law implies a reasonable amount, a quantum meruit. (Baer v. Roech, 21 N.Y.S. 974, 51 N.Y.S. 427.)

Whenever a sale is effected through the efforts of a broker, or through information derived from him, so that he may be said to be the procuring cause of it, his services are regarded as highly meritorious and beneficial, and the law leans to that construction which will best secure the payment of its commission rather than to the contrary. (Stewart v. Mather, 32 Wis. 344, 350.)

T. D. Cahalan, for Respondent.

There is a great conflict of evidence in this case. The appellate court will not disturb a judgment or verdict, or order denying a new trial where there is a substantial conflict in the testimony, and no rule of law appears to have been violated. (Sharon v. Sharon, 79 Cal. 633, 23 P. 26, 131; Mootry v. Hawley, 1 Idaho 543; Pine v. Callahan, 8 Idaho 684, 71 P. 743; State v. Rathbone, 8 Idaho 161, 67 P. 186; Spaulding v. Coeur d'Alene R. Co., 5 Idaho 539, 51 P. 408; Commercial Bank v. Lieuallen, 5 Idaho 47, 46 P. 1020; Huston v. Twin etc. R. R. Co., 45 Cal. 552.)

When a jury has been waived by the parties, and the court finds the facts, the facts so found have the same legal effect as if found by a jury, and not being the subject of review in this court are therefore conclusive. (Swayne v. Waldo, 73 Iowa 749, 5 Am. St. Rep. 712, 33 N.W. 78; Wheeler v. Hays, 3 Cal. 286; Handlan v. McManus, 100 Mo. 124, 18 Am. St. Rep. 534, 13 S.W. 207; Smith v. Anderson, 2 Idaho 537, 21 P. 512.)

An examination of the evidence shows not only a "substantial," but an apparently irreconcilable conflict, and where there is a substantial conflict in the evidence, a finding of fact by the court, based thereon, will not be disturbed. (O'Connor v. Langdon, 2 Idaho 805, 26 P. 659; Spaulding v. Coeur d'Alene Ry. Co., 5 Idaho 539, 51 P. 508; Ainslie v. Printing Co., 1 Idaho 643; Simpson v. Remington, 6 Idaho 681, 59 P. 360; Sears v. Flodstrom, 5 Idaho 314, 49 P. 12; Tage v. Alberts, 2 Idaho 251, 13 P. 19.)

A general finding that all the allegations of the answer are true, and that all the allegations of the complaint are untrue, is sufficient if the pleadings are sufficient. (Williams v. Hall, 79 Cal. 607, 21 P. 965; County of San Diego v. Seifert, 97 Cal. 597, 32 P. 644; Carey v. Brown, 58 Cal. 184; Bravelli v. Bianchi, 136 Cal. 613, 69 P. 416.)

Where the finding made is conclusive against the right of the plaintiff to recover, findings upon other issues are unnecessary to support the judgment against him. (Dyer v. Brogan, 70 Cal. 139, 11 P. 589; Murphy v. Bennett, 68 Cal. 529, 9 P. 738; Dedmon v. Moffit, 89 Cal. 213, 26 P. 800; Southern P. R. R. v. Dufour, 95 Cal. 619, 30 P. 783, 19 L. R. A. 92; Lion v. McClory, 106 Cal. 627, 40 P. 12; Adams v. Crawford, 116 Cal. 599, 48 P. 488; Breeze v. Brooks, 97 Cal. 77, 31 P. 742, 22 L. R. A. 256; Dimond v. Sanderson, 103 Cal. 97, 37 P. 189.)

Lawful conclusions on disputed questions of fact cannot be interfered with on appeal. (Wilson v. Trenton, 61 N.J.L. 599, 68 Am. St. Rep. 716, 40 A. 575, 44 L. R. A. 540.)

If there is evidence to support findings, its weight is within the province of the trial court, and its determination cannot be disturbed on appeal. (Singleton v. Hill, 91 Wis. 51, 51 Am. St. Rep. 868, 64 N.W. 588; Dilman v. Carlin, 105 Wis. 14, 76 Am. St. Rep. 903, 80 N.W. 932, 46 L. R. A. 478; Wilson v. Commercial Assur. Co., 51 S.C. 540, 64 Am. St. Rep. 706, 29 S.E. 245; Strickley v. Hill, 22 Utah 257, 83 Am. St. Rep. 791, 62 P. 893.)

The evidence must show that the plaintiff brought the minds of the buyer and seller of the orchard to an agreement for a sale. (Zeimer v. Antisell, 75 Cal. 510, 17 P. 642; Babcock v. Merritt, 1 Colo. App. 84, 27 P. 884; Wilson v. Mason, 158 Ill. 304, 49 Am. St. Rep. 163, 42 N.E. 134.)

The very essence of a brokerage commission is that it is dependent upon success, and that it is no way dependent upon or affected by the amount of work done by the broker. (Cadigan v. Crabtree, 179 Mass. 474, 83 Am. St. Rep. 397, 61 N.E. 37, 55 L. R. A. 77.)

SULLIVAN, J. Stockslager, C. J., concurs in conclusion, Ailshie, J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover a commission of $ 700 for services rendered in selling for the plaintiff forty acres of...