Heffner v. Chambers

Opinion, Mr. Justice Williams : This action was brought by Chambers, plaintiff below, to recover commissions on the price at which certain coal lands in the county of Schuylkill were sold by Heffner, the owner, to Hall, or through him to the P. & R. Coal & Iron Co. On January 13, 1882, Heffner executed and delivered to Chambers a writing authorizing him to sell the land at §200 per acre and agreeing to allow him a commission of 10 per cent on the price. In view of the fact that the efforts of Chambers might bring purchasers directly to the owner, Heffner agreed if a sale was made by him he would allow a commission of 5 per cent; the right to compensation to depend in either case upon a sale for a price exceeding §40,000. On January 19, 1883, the land remaining unsold, an indorsement was made upon the writing of January 13, 1882, reducing the price to §150 per acre, authorizing a proposition to the P. & R. Coal & Iron Co. to permit one half the purchase money to remain on mortgage, and agreeing to allow the same commissions as before. About two months later, Heffner made a contract for the sale of the land to C. M. Hall for §50,000, payable one half in cash within three months, and one half by bond and mortgage secured upon the premises. [94] Hall paid $500 upon this contract, and subsequently transferred it to the P. & R. Coal & Iron Company, which complied with its terms and received a deed for the land. Chambers alleged that this sale was really made by him or as the result of his efforts, and that he was entitled to compensation, at least at the rate of five per cent on the price, in accordance with the written agreement. The defendant denied that the sale was the result of the efforts of Chambers, and asserted that the written contract had expired before the sale to Hall was made. The verdict must be regarded as settling the first of these questions. There was evidence showing that Chambers had brought the attention of Hall and of the P. & R. Coal & Iron Company to these lands, that the title had been examined, and that he had urged a sale. From this evidence the jury have found that although Chambers did not actually negotiate the sale, he drew the attention of the purchaser to the lands and Avas the cause of his application to the owner. If, as the verdict establishes the fact to be, the sale was the result of the efforts of Chambers, he is entitled to compensation, unless the agreement had expired by its terms or by notice of revocation before the sale to Hall was made. An examination of the writing and of the indorsement thereon of January 19, 1883, shows no limitation expressed therein. The burden was therefore on the defendant, of showing that the limitation asserted had actually been agreed upon and omitted from the writing by fraud, accident or mistake. The evidence upon this subject consisted of the testimony of Heffner, on one side, who asserted that it was agreed on January 19, 1883, that the authority of Chambers should end on the 1st day of February folloAving. This was, on the other hand, denied by Chambers whose testimony was supported by the paper. This evidence was submitted to the jury with proper instructions and they have found in favor of the plaintiff upon this question. The real question in this case is raised by the defendant’s point numbered which relates to the alleged revocation of Chambers’ authority to sell. This point asked the court to instruct the jury that if Heffner on January 19, 1883, notified Chambers that he had an offer for the sale of his land, but that he [95] would not consider it until the 1st of February, this was a notice that Chambers’ authority would expire and that he would resume his rights as owner on that day; so that if Chambers had not then made sale, his right to a commission on a sale made by Heffner would be at an end. The answer to this point is not responsive and we quite agree with the learned counsel for the plaintiff in error that it is wholly inadequate. It refers to the writing, recalls the fact that no limitation appears in its terms, refers to instructions already given as to the omission of anything therefrom and concludes thus: “We believe that the defendant had the right to make sale of his land under the writings before you, but if he sold to a party who was procured or furnished through the efforts and exertions of Chambers,.....then Chambers is entitled to a commission either of five or of ten per cent as we have heretofore instructed you.” The point asked an instruction upon the legal effect of the fact assumed, viz.: that Heffner had notified Chambers that before considering offers he had received, he would wait on Chambers till the 1st of February. The answer related to an entirely different question, that of the reformation of the written instrument. If the evidence was of such a character as to justify the submission to the jury of the fact assumed in this point, the answer would be an error that we could not overlook. But, upon turning to the testimony, we find no offer to prove notice of revocation, and no evidence on which this question could be raised except that given by the defendant Heffner, under the following offer: “ Defendant now proposes to prove by Samuel Heffner.....that on January 19, 1883, Chambers came to him and wanted him to change the terms of the contract and allow him to sell the land for $150 per acre, etc......This to show that by an oversight or mistake of Chambers, who was the party that wrote this supplemental contract, or by a fraudulent omission of his, he left out of this supplementary contract a very material stipulation, that it was agreed between them in consideration of the concession and alteration of the original contract, that Chambers’ right to 'sell the land should terminate on the first day of February.following,” etc. Nothing could be clearer than the statement of the purpose [96] of this offer. It was to show that part of an entire agreement had been omitted by fraud, accident or mistake. The court admitted the evidence for the purpose stated in the offer, saying: “We will therefore permit the defendant to testify to the alleged omission as to the time of February 1st, if such is-the case.” The testimony of the defendant upon the subject was given in these words: “ After we agreed on this amount he wanted me then to give him a chance to sell at $40,000. I refused that and told him I had a party to come which I knew would take it at $50,000; then we agreed I would give him this but no longer time than 1st of February, and he made it on the paper.” There is in all this no allegation of notice of revocation of the power to sell, nor that Heffner would wait on Chambers till February 1st, before considering offers that had been made to himself. The testimony is strictly in support of' the offer to show the omission from the writing, by fraud, accident or mistake, of part of the agreement actually made on January 19, 1883. There is therefore nothing in the evidence’ to justify the submission of the fact assumed in the point to’ the jury; and the answer, although not responsive to the point, correctly states the rule as to the question actually raised by the evidence. The plaintiff in error was not injured by the answer actually given, and he was not entitled under the evidence-to the instruction he asked for. ' It is the duty of a judge to instruct the jury upon every question of law involved in a case trying; but it is not his duty to answer points that raise questions in thesi merely, or that rest upon the assumption of a fact of which there is no> such evidence as to justify the jury in finding it. Judgment affirmed.