Morey v. Harvey

Chief Justice Hayt delivered the opinion of the court. The foregoing summary of the pleadings will show that thé suit is based upon a single cause of action. This cause of action is stated differently in the several counts, undoubtedly for the purpose of providing against the varied aspects which the proof might assume upon trial. In the first count the plaintiff seeks to recover upon the quantum meruit; in the second he pleads an express agreement, by the terms of which he was to receive the sum of $5,000 for his services as a broker in making a sale of defendant’s property. At the trial, the district court held that the plaintiff was only entitled to recover on the quantum meruit, and so instructed the jury. This action on the part of the court is the principal [43] ground of complaint upon which a reversal of the judgment is sought. ■ The correctness of the ruling of the court below depends upon the evidence. An examination of this will show the employment of plaintiff by defendant to sell the property described in the pleadings ; that plaintiff, acting under such contract, procured a purchaser for this property upon terms that were acceptable to the owner, and that the sale was actually consummated with such purchaser. The only question in dispute, therefore, is as to the commission to which plaintiff is entitled. Plaintiff claims that he is entitled to judgment for $5,000, while defendant contends that the amount was properly fixed upon the quantum meruit. It is in evidence that Harvey authorized Morey to sell the quarry for not less than $15,000 in cash, and that it was orally agreed between them that Morey should have all that could be obtain ed for the property above this amount. Morey procured purchasers for the property in the persons of Russell Bros. & Bills at the stipulated price of $20,000. The payment of this amount was arranged satisfactorily to all the parties, and the sale completed upon this basis. A part of the purchase price was paid in cash, a part in stone, and the balance in city lots. Morey thereby became entitled to a commission for his services, but whether this cominission was to be paid in cash or in real estate is left in doubt. The court below, assuming that the contract of the parties called for the payment of the agent’s commission in real estate, decided that such contract not having been reduced to writing was void under the statute of frauds, and that plaintiff was only entitled to the reasonable value of his services. The trial court was not justified in this assumption under the evidence. For while evidence was introduced tending to support this theory, testimony was also adduced tending to show that plaintiff under his contract was entitled to a cash commission of $5,000. Under the terms of the contract as originally entered into, plaintiff was to have a cash commission. This is not disputed, but whether or not this contract [44] was afterwards abrogated and a new contract substituted for it is not made clear by the evidence. There is testimony in the record before us tending to show that the negotiations between the parties with reference to the payment of the commission in real estate occurred after the sale had been consummated. If, as a matter of fact, the jury had found that plaintiff had earned the commission to be paid in cash under the terms of the original contract, and that, bjr an oral agreement made after the commission was fully earned, the plaintiff consented to take real estate in lieu of cash at the option of the defendant, upon the defendant’s refusal to convey the real estate, plaintiff had an undoubted right to recover the amount of the cash commission agreed upon. It was the peculiar province of the jury to pass upon questions of this nature, and a jury not having been waived by the parties, and the issues of fact as well as of law submitted to the court for determination, it was error for the court to undertake to decide upon the weight of evidence, and withdraw from the consideration of the jury one phase of the controversy upon which plaintiff in error was entitled to have them pass. For this error the judgment must be reversed. Reversed.