Smith v. Vosika

1 Reported in 208 N.W. 1. The complaint charged the defendant with a breach of his contract to procure a purchaser for a farm at a stated price. The demurrer was sustained. The plaintiff appeals. The controversy was here before upon a complaint charging the defendant with inducing the plaintiff to enter into a contract of purchase by a fraudulent promise to sell at an advance. Smith v. Vosika, 163 Minn. 12, 203 N.W. 428. The defendant was the selling agent of the owner of a quarter section farm in Renville county. The plaintiff was negotiating with the defendant for the purchase of it. As a part of the transaction the defendant promised the plaintiff that if he would buy on stated terms he would resell the property for him within the current year at an advance of $1,500. The plaintiff accepted, paid the owner $1,000 cash, and entered into a written contract with him agreeing to pay $3,000 in a year, and the additional consideration later. The defendant did not procure a purchaser. He then successfully negotiated with the owner for a change in the contract extending for a year the payment of the balance of the $3,000 payment upon the payment by the plaintiff of $1,500. The defendant then promised the plaintiff that if he would pay the $1,500, and take the extension he, the defendant, would resell the farm within the season at an advance of $35 an acre, a total profit of $5,600. The plaintiff assented to this arrangement and entered into a written agreement of extension with the owner. The plaintiff again failed to procure a purchaser. 1. The facts alleged show a consideration. The plaintiff gave an act in return for the defendant's promise; that is, he entered into a contract of purchase with the owner, and paid money upon it, upon the promise of the defendant to procure a purchaser at a designated price. It is not important, so far as concerns the *Page 20 question of consideration, that the plaintiff did not agree to sell if a purchaser was found. We take the complaint as stating seriously what the transaction was. If it was the real understanding of the parties that the defendant was to procure an actual purchaser with such splendid profits to the plaintiff from so small an investment, there was a contract which should be given effect. To create an obligation such must have been the understanding. If what was said was mere talk, boasting by the broker of what could be accomplished, hopeful talk as to land prospects, without a genuine intention that the defendant was bound to produce a purchaser at the price fixed, there was no contract. The proofs will tell. The complaint alleges a consideration. 2. The contract is not within the statute of frauds as one for the sale of lands. The defendant for a consideration agreed to procure a purchaser. The case is not different in principle from one where the owner of land offers an agent an agreed commission or compensation for procuring a purchaser. Not in such a case nor here is a writing necessary to satisfy the statute of frauds. Vaughan v. McCarthy, 59 Minn. 199, 60 N.W. 1075; Moore v. Daiber,92 Mich. 402, 52 N.W. 742; Etscheid v. Tiefenthaler,172 Wis. 273, 177 N.W. 887. 3. Whatever the measure of the plaintiff's damages, it has reference to the selling value of the farm. If the land was worth all or more than the sum for which the defendant agreed to find a purchaser there was no damage. For instance, the plaintiff bought the farm for $18,400, or $115 per acre; and the defendant was to find a purchaser at $150 per acre. If the land had a selling value of $150, at the time the defendant should have produced a purchaser, the plaintiff could not retain the land and recover $5,600 damages; nor sell the land for its value and recover $5,600. Whatever the damage may be, the selling value of the farm is a material fact, and there is no allegation of it. That the plaintiff did not make his payments, and lost the land through a foreclosure of the contract, is, so far as now appears, but an incident, and gives no right of action. Order affirmed. *Page 21 On April 1, 1926, the following opinion was filed: AFTER REARGUMENT.