Tonkin-Clark Realty Co. v. Hedges

STEWART, J. This action was brought by the plaintiff against the defendant to recover the sum of $699.27 for services on an alleged sale of real estate owned by the defendant and alleged to have been listed for sale and sold to A. H. Krulish and Charles W. Erulish. The answer denies the allegations of the complaint, and alleges that the defendant listed the property involved with the A. L. Murphy Company, Ltd., a corporation engaged in the real estate business, and through such agency the property was sold to the same parties alleged in the complaint as being the purchasers through the agency of plaintiff. The case was tried before a jury and a verdict was rendered for the sum of $699.27 and costs. Judgment was rendered in accordance with the verdict. This appeal is from the judgment. The appellant assigns as error that the court erred in overruling defendant’s motion for a nonsuit. Upon this alleged error it is sufficient to refer to the following cases wherein this court has determined the sufficiency of this error: Shields v. Johnson, 12 Ida. 329, 85 Pac. 972; Rippetoe v. Feely, 20 Ida. 619, 119 Pac. 465; Smith v. Potlatch Lumber Co., 22 Ida. 782, 128 Pac. 546. In these cases it is held that where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support his defense and makes a case upon the merits, the court or jury has a right to consider the whole case and the motion for a nonsuit is waived. The appellant combines all the assigned errors except the motion for a nonsuit in the following contentions: (1) The alleged conversation between J. O. Tonkin and defendant was inadmissible, and does not sustain'the verdict and judgment. There is no merit in this assignment of error for the following reasons: (a) The judgment is not based wholly upon the conversation of Tonkin and defendant over308 the telephone. There are other facts in the case which in onr judgment show that the defendant did list the property owned by him, and the appellant brought the attention of Krulish Brothers to the fact that the property was for sale or exchange for the property that was owned by Krulish Brothers; (b) The jury were the judges of the credibility of the evidence and the witnesses and the weight of evidence, and Tonkin testified that he had a conversation with the defendant over the telephone on the 21st day of July, 1911; this was only one fact which constituted th°e evidence which was submitted to the jury; (c) Tonkin is also corroborated by the evidence of Doyle and other evidence which clearly established that J. W. Hedges was the agent of the defendant, and the defendant ratified the acts of J. W. Hedges and accepted the benefits of his acts by conveying the property to Krulish Brothers. In the evidence of Tonkin he testifies, that when Tonkin called over the phone he asked for John Hedges, and the answer was, “this is Clem Hedges.” This admission of Clem Hedges, when considered with the other evidence of the sale, identifies the party talking as Clem Hedges, and was acted upon and recognized thereafter in making the conveyance of the defendant’s property to the very parties that the appellant was negotiating with after the property was listed with the plaintiff, and the jury were the judges as to whether or not the person talking over the phone was Clem Hedges or J. W. Hedges, notwithstanding Clem Hedges denies the same. This question of recognizing evidence of conversations over the telephone line is well recognized by the courts generally. In Wolfe v. Missouri Pac. R. Co., 97 Mo. 473, 10 Am. St. 331, 11 S. W. 49, 3 L. R. A. 539, the supreme court of Missouri says: “The courts of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication in relation to his business through that channel. Conversations [309] so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to determine merely the admissibility of such conversations in such circumstances, but not the effect of such evidence after its admission. It may be entitled, in each instance, to much or little weight in the estimation of the triers of fact, according to their view of the credibility, and of the other testimony in support or in contradiction of it.” We approve the foregoing opinion as to the admissibility of such evidence, and are satisfied that the effect of the admission of such evidence is a matter wholly with the jury, and it is within the power of the jury to determine the weight of such evidence according to the jury’s view of its credibility and the other testimony corroborating the same or in contradiction of such testimony. This doctrine is also approved in the case of Globe Printing Co. v. Stahl, 23 Mo. App. 451; Oskamp v. Gadsden, 35 Neb. 7, 37 Am. St. 428, 52 N. W. 718, 17 L. R. A. 441. (2) The alleged identification of defendant by W. A. Doyle as being at the office of the plaintiff with J. W. Hedges on his second visit on or about July 26, 1911, as tending to sustain the verdict, was a matter for the jury to determine and not for the trial court or this court. It may or may not have been a force of itself which tended to sustain the verdict, but taken with the other facts in the ease the jury might determine that it was of great force in determining whether or not Doyle saw the defendant at the office of plaintiff with Hedges on July 26th, five days later than the property was listed on July 21st. (3) The third assignment of error is subject to the same rule as governs the effect of the evidence referred to in No. 2, whether the jury gave consideration and weight to the testimony of defendant, that he might have been at the office of plaintiff about that time, but heard nothing about the land deal or exchange. [310] (1) The fourth assignment of error, that the verdict and judgment are not supported by the evidence, is the important question in this case. There can be no question but that the defendant was anxious to make a deal disposing of the real property, and through the acts of J. W. Hedges the defendant listed with the plaintiff the real property and agreed to pay plaintiff the regular commission, which on all sums over $10,000 was five per cent on the first five thousand, three per cent on the second five thousand and two and one-half per cent on the excess over ten thousand. There can be no question, also, but that the plaintiff obtained Krulish Brothers as customers for the exchange of the stock of merchandise and real estate at King Hill; that through Watson and Ton-kin, members of the plaintiff firm, an agreement was made with Krulish Brothers to exchange their property to the defendant for his land, and that they informed the defendant, through J. W. Hedges, that an exchange of the property was made at the listed price of $20,000. The only issue of fact upon which the verdict is in conflict is, does the evidence show that J. W. Hedges acted in the transaction as agent of the appellant and had he authority to so act ? (5) The fifth assignment of error is, that the proofs do not show that plaintiff was the procuring cause of the exchange. There is evidence in the case of a substantial character that shows that J. W. Hedges acted as the agent of the defendant and listed the defendant’s land with plaintiff for sale or trade, and that plaintiffs used their efforts and personally solicited and secured the Krulish Brothers as purchasers of said land, and that the defendant, through his agent J. W. Hedges, was informed that Krulish Brothers would make the trade; that after plaintiff began negotiations with Krulish Brothers, and while plaintiff was attempting to make the trade, the defendant completed the trade of his land as listed to Krulish Brothers, and accepted the benefits of the transaction; that for his services plaintiff was entitled to the commission provided in the listing of the property. The court seems to have given the law of the case, and it was accepted by the jury, and the jury determined the issues [311] of fact. The law is well settled in this state that where a party employs a real estate broker to sell a piece of property at a stipulated price and the broker procures a purchaser who purchases such property, or is able and willing to purchase such property upon the terms given to the agent by the owner, or where the purchaser’s attention was first called to the desire of the owner of the property by the broker, and he thereafter purchases the property, the broker is entitled to his commission. (Wood v. Broderson, 12 Ida. 190, 85 Pac. 490; Phillips v. Brown, 21 Ida. 62, 120 Pac. 454.) We find no reversible error in the record. The judgment is affirmed. Costs awarded to the respondent.