Wood v. Wells

• Decision Date: 22 December 1894
• Citation: 103 Mich. 320,61 N.W. 503
• Court: Michigan Supreme Court
• Parties: WOOD v. WELLS.

61 N.W. 503

103 Mich. 320

WOOD v. WELLS.

Supreme Court of Michigan

December 22, 1894

Error to circuit court, Ionia county; Peter F. Dodds, Judge.

Action by O. Scott Wood against Willard B. Wells of recover a commission for the sale of real estate. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

John Nichol (R. A. Hawley, of counsel), for appellant.

Chaddock & Scully, for appellee.

MCGRATH C.J.

Assumpsit is brought to recover a commission for the sale of real estate. Defendant resided in Vancouver Wash., and plaintiff at Ionia, where the property is situate. In November, 1892, plaintiff secured from one Welker an offer of $3,600, and communicated said offer to defendant. Within a few days thereafter, the property was sold and conveyed, through one Calkins, to Welker, for $3,650. But, under this contract of sale, defendant paid the taxes for the year 1892, which did not become a lien upon the land until December, and which amounted to $51.10. On the 12th of October, plaintiff wrote to defendant that he had a purchaser for the property; and on November 8th the offer and the name of the purchaser were communicated to defendant with the request that defendant wire his acceptance. On November 14th defendant telegraphed to plaintiff to "accept offer, unless I telegraph by Saturday"; and on November 16th defendant telegraphed: "Will not sell property for $3,650." On November 14th defendant had written, saying that he had received a better offer, which he had accepted. This letter was not, however, received until some days after its date. Defendant insists that he finally sold the property, through Calkins, for $3,650. In his testimony he says: "The sale was consummated through the efforts and instrumentality of Charles K. Calkins." Nowhere does he claim that the offer of $3,600 and the name of the purchaser were not first communicated to him by plaintiff. The purchaser testifies as to a conversation had with Calkins as follows: "He asked me $3,700 or $3,800. Before he left me, he asked me if I would give him $3,700, if I remember right. I says: 'No; I won't; not to-day.' He says to me, would I give $3,650. 'Well sir,' I says, 'I will think about it, and let you know.' And if I remember right, the next morning I went to Mr. Calkins' house, and told him I would give him $3,650; and I wanted him to give me possession, and I wanted him to pay the taxes, as it was getting near the end of the year, and I had had no use of it. He said he would give me possession of the house, but disputed about paying the taxes. The taxes seemed to divide us. It seemed to be upsetting the trade. We both found out what the taxes were. *** Finally, I said to him: 'You telegraph the judge, and I will pay for it, and he will pay the taxes himself.' I paid for the telegram to Vancouver, and he answered back to Mr. Calkins to pay the taxes, and let me have it. I never made Mr. Wood any higher offer than $3,600 and there was nothing said about the taxes." Under these facts, plaintiff must be held to have procured the purchaser and...