Neilson v. Lee

Sharpstein, J.: This is an appeal by the plaintiff from a judgment entered in favor of the defendant upon the following findings of fact: “1. On or about the thirtieth day of June, 1878, the plaintiff and the defendant entered into a contract in writing, by which the defendant appointed the plaintiff his agent in the sale of a certain mining claim in the State of Nevada, which contract was to remain in force sixty days from the first [564] day of July, 1878, with the privilege to the plaintiff to renew it for thirty days thereafter. “2. By the terms of said contract, if plaintiff effected a sale of said mining claim within the time specified, for more than $50,000, he was to receive as compensation for his services as agent in effecting said sale one half of the amount realized thereby, over and above said sum of $50,000. “3. Plaintiff was not to receive any compensation for his services, nor were any expenses incurred in the transaction to be chargeable against defendant, unless a sale was effected by plaintiff under said written contract. “4. About the twentieth of August, 1878, plaintiff entered into negotiations with one H. A. Hedger for the sale to him of said property for the sum of $75,000 in United States gold coin. “5. These negotiations were carried on between the said parties until about the twenty-seventh day of August, 1878, when they were terminated by a notification to plaintiff from Hedger, that he declined to purchase the property. “6. The plaintiff did not effect any sale of said property, nor did he procure a purchaser able and willing to purchase the same.” It is claimed by the appellant that the last finding and the last clause of the finding next preceding the last are contrary to the evidence. There is positive evidence of the pecuniary ability of Hedger to purchase the property, which is not contradicted, so that there is no conflict of evidence upon that question. His willingness to purchase the property is evidenced by an instrument in writing between him and the plaintiff, in which he agrees to purchase it at the price and on the terms upon which the plaintiff was authorized by the defendant to sell it. In that agreement there is a stipulation that Hedger might have twenty days from its date in which to examine and pass upon the title to the property. The agreement between the plaintiff and defendant was, by its terms, to remain in force for a period of sixty days from its date, and had, at the date of the agreement between the plaintiff and Hedger, more than twenty days to run. How it appears further by. the evidence that Hedger insisted [565] upon a ratification of the agreement between him and the plaintiff by the defendant within a specified period, and that the defendant refused to ratify it within that period, and that Hedger at the expiration thereof notified the plaintiff that he, Hedger, considered himself released from any further obligation to purchase the property. By refusing to ratify said agreement the defendant, we think, refused to sell the property to Hedger, at the price and on the terms which the defendant had agreed with the plaintiff to sell it. And if that be so, the finding that the plaintiff did not procure a purchaser able and willing to purchase said property, is against the evidence. The evidence shows that the sale was defeated by the refusal of the defendant to ratify the agreement made by his agent, the plaintiff, with Hedger, and we are unable to find anything in the evidence which tends to show that Hedger was not both able and willing to purchase at the price and upon the terms fixed by the defendant in his agreement with the plaintiff. Judgment and order denying a new trial reversed. Mobbison,. 0. J., McKiktstby, Boss, Thobjsttok, JJ.. concurred. Hybick, J. dissented.