Bushnell v. Coggshall

MILLS, C. J. The first and fourth assignments of error are to the action of the court in refusing to instruct the jury to find for defendants. This motion was made by the defendants both at the close of the plaintiffs case in chief and at the ■close of all the evidence in the case. When first made at the ■close of the plaintiffs case, it was overruled, the court assigning as a reason therefor that it was sufficiently shown from the evidence that it was a question for the jury, as to whether or not the character of the agency was that of an exclusive agency. To this ruling defendants excepted. At the close of all the evidence in the case counsel for defendants renewed the motion in writing. The grounds are set out in the motion: First, that the declaration was on the common counts, and not upon a special contract to sell real estate and that the evidence did not sustain the counts; second, that the declaration was for services sold and delivered at the special instance and request of the defendants, and the evidence showed a claim for commission on real estate actually sold by other persons, acting as agents of the defendants, in violation of a contract of the defendants with the plaintiff, giving him the exclusive right to sell said real estate. These are the substance of the grounds set up in the motion. The court overruled the motion and instructed the jury of its own motion, in part, as follows: “Then if you further find that such employment gave Bushnell as long as it continued an exclusive right to sell sáid lots, then the court instructs you that the sales made to F. H. Kent, and Childers and Dobson by defendants directly before such agency or employment had been revoked, entitled the plaintiff to' recover his commission of five per cent, on nine thousand seven hundred and fifty dollars, with interest thereon from March first, 1891, which amounts at this time to $710.00.” At the request of the plaintiff the court gave an instruction containing the following: “That even though the jury might believe that while said agency was unrevoked some other agent of the defendants; that is to say, Eugene Underhill authorized F. H. Kent and E. W. Dobson, the consent of plaintiffs not being first obtained, to sell the said lots, this would not defeat plaintiff’s claim for commission, if, in fact, he had such an exclusive agency and such testimony is before you as other testimony in considering whether or not he did have such exclusive agency.” Defendants excepted to the giving of these instructions. The second assignment of error is to the action of the court in overruling defendant’s motion for a new trial. The action of the court in refusing to grant a new trial is not the subject of review, although this court has held that it was necessary to make a motion for a new trial and have it overruled, before the appellate court could review errors of law committed on the trial. Coleman v. Bell, 4 N. M. 28; Buntz v. Lucero, 7 N. M. 220; Schofield v. Territory, 56 Pacific Rep. 306; Schofield v. Slaughter, 54 Pacific Rep. 757. It is, therefore^ only necessary to consider the other three assignments of error. All of them are based upon the proposition that the plaintiff could not recover upon the count in the declaration for “services” sold and delivered. For the purpose of considering the cáse, we will treat this as a count for services rendered at the request of the plaintiff. The informality or inaccuracy in the language used may be held to have been cured by subsection 78 of section 2685, Compiled Laws of 1897. This count thus treated, is the only count to which any of the evidence introduced can be claimed to apply. agency: reales-commSsionsf' for™ °f actlon The plaintiff claims that he had the exclusive right to sell the property of the defendants under his contract with them, and was entitled to receive therefor -^ve Per cent- commission on the purchase money. The plaintiff himself testified that his claim was for five per cent, on $10,000, the purchase price of eight lots on Gold avenue “sold by the defendants through other agents than myself,” and five per cent, upon lots sold by himself to one Coddington for a sum between six and seven hundred dollars, the commission thereon amounting to between thirty and forty dollars. The plaintiff actually sold only the Coddington lots. His claim to commission on the other lots is based upon his alleged contract of exclusive agency, and a violation of that contract, by defendants permitting other persons to sell the lots. The appellants contend that this evidence does not sustain a general count in indebitatus assumpsit, and that in order for the plaintiff to' have recovered on the evidence, he should have declared specially on his contract. The appellee and plaintiff below, insists upon the rule of law, that when a special contract, not under seal, has been fully performed by the plaintiff, and nothing remains to be done but the payment of the money by the defendant, the liability of the defendant may be enforced under the indebtitatus as-sumpsit count, and in such cases it is not necessary to set out or declare upon the special count. That in either ,case the contract will determine the right of the parties, and cites Dermott v. Jones, 2 Wall. 1, and other authorities. There can be no doubt that this principle of law is sound. Applying it to the facts in evidence in this case we find from the undisputed evidence that the appellee did complete his contract and sell lots in value from six to seven hundred dollars to Codington, and that the appellants refused to carry out the sale under the contract by executing and delivering a deed for the lots to the purchaser. Cash deposits on account of the purchase money had been taken, but the sale had not been completed until after this suit was brought. Thereupon the defendants revoked the agency and refused to execute and deliver the deeds to the purchaser, Codington. Appellee did not complete either of the other sales to Kent or to Childers and Dobson, on which he claims to recover commissions, and the right to recover which the court below submitted to the jury by its instructions. There is no evidence to show that the appellee would have sold the lots to any other purchaser but for the acts of the defendants which prevented him from so doing. The court submitted the case to the jury upon the theory that if the appellee had the exclusive right to sell, he was entitled to recover for all sales made, whether by himself or any one else. This was error, so far as the facts in evidence in this case are concerned. The principle that recovery may be had upon the common counts where the plaintiff is prevented from carrying out his special contract by acts of the defendant has no application in this case. There is nothing to show that prior to the bringing of this suit the appellants would not have recognized any sale made by appellee, and carried it out, or that any act of the appellants or any other agents employed by them prevented the appellee from making any sales. The appellee’s claim to recover is based, as already stated, solely upon the claim that he had the exclusive right to sell these lots, and that the appellants had permitted other persons than himself to sell them. Upon this claim, no recovery can be had except upon the special contract itself. As to these items there was an entire failure of proofs of the cause of action alleged in the declaration, within the meaning of subsection 80 of section 2685, Compiled Laws of 1897: Beck v. Ferrara, 19 Mo. 30; Link v. Vaughn, 17 Mo. 585; Buffington v. Atlantic & Pacific R. R. Co., 64 Mo. 246; Kildow v. Irick, 33 S. W. Rep. (Texas) 315. As to these items, the sales to Kent and Childers and Dobson, the contract was still executory. “While a special contract remains executory, the plaintiff must sue upon it.” Dermott v. Jones, 2 Wall. 9. The theory upon which the recovery can be had in inde-bitatus assumpsit, upon a part performance is that the other party had derived some benefit from the part performance •which he should not have done without paying something for it. “The law, therefore, implies a promise on his part to pay such a remuneration as the benefit conferred is really worth; and to recover it, an action of indebitatus assumpsit is maintainable.” Dermott v. Jones, 23 Howard, 220. The sales to Kent and to Childers & Dobson not having been completed by the plaintiff, he was not entitled to recover for commissions upon them in this action in indebitatus assumpsit on the common count. The Codington sale was completed, and the refusal of the defendants to carry it out took place after this suit was brought. The appellee could not recover for any cause of action which did not exist at the time of the bringing of hik suit. The action as to the Coddington sale was prematurely brought. He was, therefore, not entitled to recover upon any sale shown by the evidence, and the motion of the appellants for an instruction to the jury to find in their favor should have been sustained. For the reasons above stated, the judgment will be reversed and the cause remanded with instructions to the court below to proceed in accordance with this opinion. Parker and McFie, J. J., concur; Crumpacker, J., having tried the case below, and Leland, J., being absent, did not participate in this decision.