Murphy v. W. & W. Livestock Co.

BlydENburgi-i, Justice. The plaintiff in error, Murphy, brought this- suit in the court below to recover from the defendant in error, W. & W. Dive Stock Company, a corporation, five thousand five hundred and fifty dollars alleged to be due as commissions for — 459 — finding a purchaser for certain ranch lands, leases and sheep. The case was tried to a jury, which returned a verdict for the defendant, upon which judgment was rendered, and plaintiff brings this proceeding in error. The plaintiff’s amended petition contains two causes of action, in the first alleging “that ever since on or about the 15th day of October, 1918, there has been due him from the defendant the sum of fiive thousand dollars ($5,000.00) with interest thereon at 8% on a contract entered into between the plaintiff and defendant whereby on or about the 23rd day of September, 1918, it was agreed by the defendant with the plai'ntiff that if the plaintiff would find a purchaser for certain ranch lands of defendant’s being about 560 acres near Big Trails, Wyoming, together with the leases on about 2,000 acres of land in the same vicinity thereof, at the price of thirty-five thousand dollars ($35,-000), then the defendant would pay the plaintiff the sum of five thousand dollars ($5,000.00). That the plaintiff produced a purchaser ready, willing and able to pay the price fixed and on or about the 15th day of October, 1918, terms of sale were agreed upon between defendant and said purchaser, one Bred Eberhard, and an enforceable contract executed between them for the sale of the said land and leases and under the terms of said contract the defendant received and retained the sum of ten thousand dollars cash at the time of the execution thereof from said purchaser, Eberhard; when, at which time, the sum of five thousand dollars became due and payable to plaintiff from defendant; yet defendant, though requested, has not paid any part thereof.” The second cause of action is in the same general language except it is alleged that the plaintiff was to find a purchaser for certain sheep at $17 per head; that he did produce a purchaser for 2,200 head of sheep ready, willing and able to purchase the same and that defendant agreed with plaintiff that 25c per head was a reasonable commission therefor. The defendant answered the first cause of action first by a general denial and then after admitting its corporate exist — 460 — ence alleged in substance that the plaintiff stated to defendant that he had a purchaser for defendant’s ranch lands near Big Trails, Wyoming, and for a band of breed-’ ing ewes kept on or near said ranch and inquired what commission defendant would be willing to pay plaintiff if said purchaser should be induced by plaintiff to purchase and pay for said property. That defendant advised plaintiff that it was willing to sell said ranch property- for $30,000 and said sheep for $17.00 per head, and that defendant would not pay any commission at the price named and if plaintiff procured a purchaser at the price named he must obtain any commissions for his services from such purchaser. That thereupon plaintiff represented he had a purchaser who would pay $35,000 for the ranch, $17.00 per head for the sheep, and thereupon defendant agreed with plaintiff if plaintiff produced a purchaser who would purchase and pay for the property at the prices named then the plaintiff should receive the sum of $5,000, the difference between the price for which- plaintiff was willing to sell and the price plaintiff represented the purchaser produced by him would pay therefor. Then it is alleged the plaintiff represented that the proposed purchaser was one Fred Eberhard, and that he was financially responsible and possessed money and credit sufficient to enable him to purchase said property and pay defendant the purchase price thereof. That on Oct. 15, 1918, a contract was entered into between the said Fred Eberhard and the defendant for the purchase of s'aid ranch, sheep and certain personal property on said ranch, by the terms of which Eberhard was to pay $35,000 for the ranch, $17.00 per head for the sheep and $5,500 for the other personal property, $10,000 to be paid, and was paid, at the signing of the agreement, and the balance to be paid and possession to be given on or before Dec. 1, 1918. That at the time of entering into the contract of sale the defendant had no knowledge of the financial responsibility of Eberhard other than the representations of plaintiff and that it relied upon the information furnished by plaintiff in that — 461 — respect. That said statements of plaintiff respecting Eber-hard’s financial responsibility were false and untrue and he was not financially responsible, was not able and did not comply with the contract and pay the balance of the purchase money or take the property. That defendant complied in every respect with its contract and was able and willing to convey and deliver the said property, as required by the contract on the payment of the purchase price. That by reason of the failure of Eberhard to complete the purchase by payment of the balance of the purchase price plaintiff failed to earn or be entitled to any commission, Then follows a general denial of the second cause of action. The plaintiff filed a reply which reiterated the claims of the petition and denied that he made any false and untrue statements concerning the financial responsibility and worth of Eberhard and denied that Eberhard was not financially able to comply with the" contract of purchase at the time he entered into said contract with the defendant; alleges that defendant had ample time and opportunity to ascertain Eberhard’s financial responsibility and worth before entering into the contract with him and defendant accepted him as the purchaser found by plaintiff without any question as to his financial responsibility and entered into the contract at which time plaintiff’s' commission became due and payable to plaintiff from defendant and plaintiff was estopped from claiming there is nothing due plaintiff by reason of the failure of Eberhard to complete the purchase by payment of the balance of the purchase price. The petition in error sets out seven different specifications of error; to-wit: “1. That said court erred in ruling out the evidence offered by the said W. W. Murphy on the trial of said action.” “2. That said court erred in over-ruling the motion of said W. W. Murphy for a directed verdict, at the close of the trial, under his first cause of action in the amended petition.” — 462 — “3. That said court erred in the instructions given to the jury on the trial of said action, viz: Instructions Nos. 2 and 3, as appears in the record.” “4. That said court erred in refusing to give the instructions which plaintiff in error prayed the court to give, viz: Instructions ‘A’ to ‘U, inclusive, as appears in the record.” “5. That said court erred in over-ruling the motion of plaintiff for a new trial.” “6. That judgment was given for said defendant, when it ought to have been given for the said plaintiff, according to the laws of the land.” “7. And there are other errors, prejudicial to the plaintiff in-error, manifest upon the face of the record.” The motion for a new trial contained five different grounds as follows: “1st. The verdict is not sustained by sufficient evidence and is contrary to law.” “2nd. The court erred in its instructions to the jury each and every one of which was excepted to, at the time, by the plaintiff.” “3rd. The court erred in refusing the instructions asked by the plaintiff, to which refusal the plaintiff, at the time, excepted.” “4th. For the several errors of law occurring at the trial, and to the commission of each and every of which the plain-' tiff, at the time, excepted.” “5th. And for other manifest errors apparent upon the face of the record.” It is evident that the first and second grounds of error mentioned in the petition in error not being specifically mentioned in the motion for a new trial are waived and cannot be considered here, and while the motion for a new trial alleges error in the giving of all the instructions given to the jury the petition in error claims error only in the giving of instructions 2 and 3, and the record shows that these two were the only ones excepted to by plaintiff, which we will later consider. — 463 — The principal contention of the plaintiff is that when a broker has produced a purchaser for'the property in question who is able, ready and willing to purchase at the price named and an enforceable contract is entered into between the owner and the purchaser found by the broker that the broker’s commissions become at once due and payable, notwithstanding the fact that the contract of sale is never carried out by the final payment of the purchase money. This is the law governing ordinary brokerage contracts such as is pleaded by plaintiff herein, and was so held by this court in the case of Frost v. Houx, et al., 15 Wyo. 353, 89 Pac. 568. It may well be admitted that had plaintiff proved the contract plead in his petition he should have obtained the verdict and judgment, but it devolved upon plaintiff to sustain the contract plead by him by a preponderance of the evidence and the court so instructed the jury. Whatever agreement or understanding that was had between these parties relative to the sale of the ranch and sheep was oral and consisted of conversations had over the long distance telephone and not heard by anyone else as far as disclosed by the record other than C. C. Worland, secretary and treasurer of the defendant corporation, and W. W. Murphy, the plaintiff, who were the parties to the conversation. Each of these parties testified as to their recollection of what was said as follows: The plaintiff testified: “Q. Now, Mr. Murphy, you may state if on or about the 23rd day of September, 1918, you had a conversation with any of the officers of the defendant in reference to selling some ranch lands and stock? A. I did. Q. And with whom did you have that conversation? A. C. C. Worland. Q. And that is the gentleman right here (indicating) C. C. Worland? A. Yes, sir. — 464 — Q. Now, did you at any time have an agreement with the defendant to sell their ranch lands and some stock for them, if any? (Objection.) Q. Did you have an agreement at any time, with the defendant prior — shortly prior to October 15th, 1918, whereby you was to sell the ranch lands and certain sheep for the defendant? A. I did. Q. Now, you tell the jury what that agreement was. (Objection.) By the Court: Yes, he may state what was said between the two parties. Q. You may state what that agreement was by stating what was said between you and Mr. Worland and when it was. -A. I called Mr. Worland over the phone and talked with him previous to this time about selling his ranch property and sheep and. on this day I called him up and asked him if he still wanted to sell them. He said he did. I asked him the price of the ranch property — first, I asked him what it consisted of. He said about — around 6,000 acres of deeded lands and about 2,000 acres of leased lands— Q. About how many acres of deeded land? A. Around 2,000 acres of deeded land — of leased land, I should say. Q. 6,000 — ■— A. 600 of deeded land and about 2,000 of leased land. I asked him the price of the property. He told me $30,000, and then I asked him how many sheep he had and I don’t just remember, but I think he said around 3,500,'and I asked him the price of the sheep. He said $17.00 a head, and I asked him then if he would pay a commission out-of the $30,000. He said, ‘No.’ I said, ‘Well, I have a man, one Mr. Eberhard, here with me that will pay $35,000 for the ranch property and will take some sheep’, and I said to him, I said, ‘How will that be, to put the ranch property at $35,000 and you pay us $5,000, and whatever is right for — 465 — the sheep?’ He said, 'Alright, it was alright, bring him over.’ Q. Was this conversation held over the phone? A. Yes, sir. Q. And where was you when you was talking to Mr.. W orlaild ? A. . I was at the Irma Hotel. O. Irma Hotel in. Cody? A. Yes, sir. Q. And where was he ? A. He was at Worland.” On cross-examination: “Q. Now, when you talked to him here you asked him if he wanted to sell the ranch and sheep ? A. Yes, sir. Q. And he said he did ? A. Yes, sir. Q. You asked him what his price was for the ranch? A. Yes, sir. Q. ‘ And he said $30,000 ? A. Yes, sir. Q. You asked him what his price was for the sheep and he told you $17? A. Yes, sir. Q. Lid he tell on that conversation how many sheep he had? A. I think he said around 5,500. Q. And you think he said that at that conversation? A. Yes, sir. Q. On the 23rd of September. Now, you asked him what commission he would pay and he told you he wouldn’t pay any, didn’t he? A. Yes, sir. Q. You suggested to him, didn’t you, that you could— had a purchaser that would give $35,000 for the ranch, or that you could price the ranch at $35,000? A. Yes. sir. — 466 — Q. And that you would be willing to take the $5,000 as commission ? A. No, sir. Q. You didn’t say that? A. No, sir. Q. What did you say to do with the $5,000? A. As I stated before, I told him price the ranch at $35,000, he to pay us $5,000 and what was right for the sheep. Q. • Well, now, did he tell you before that that he wouldn’t sell the ranch unless he sold the sheep ? A. He said he. wanted to sell the whole outfit.” C. C. Worland testified in regard thereto: “Q. Now, in September, where were you when you had the first talk? A. We were shipping sheep at Arminto and Mr. Murphy called me up there. Q. Called you up on the phone ? A. Yes, sir. Q. And did you hear what he said? A. Yes sir. Q. And were you able to communicate with him? A. I was. Q. Now, can you tell the jury just what he said to you and what you said to him at that time with respect to the sale of the ranch or the sheep ? A. Well, Mr. Murphy called me up and said he heard that we were offering the Big Trails ranch and the sheep for sale and I told him we was, and he said he had a buyer and he wanted to know what we wanted for the ranch and sheep and I'told him we wanted $30,000 for the ranch and $17.00 a head for the sheep and he said, ‘How about commissions ?’ Well, I said, ‘That is the price that we have got to have; that is the lowest possible price we can take for this stuff.’ Well, he said' — I said, ‘You will have to figure out the commission some other way.’ He said, ‘How about me putting a price of $35,000 on the ranch and after getting $30,000 for you for the ranch, the $5,000 will be my com — 467 — mission’ and I said that would be agreeable with me, so that was about the size of the — that was about the conversation at that time. “Q. When you had the original talk with him at Arminto, was that the time you told him he could have as commission on the deal all he got for the ranch over $30,000 ? A. That is the only conversation I ever had with him regarding commissions. Q. And did he ask you what commission you would give him for selling the sheep at $17.00 and the ranch at $30,000 in the first place? A. Well, preliminary to the $5,000 proposition, he said, 'Our usual commission is 5 per cent and 25 cents a head for the sheep,’ but in the conversation afterwards it developed that if he could get $35,000 for the ranch he would take $5,000 for his commission. Q. I thought I understood you to say that you told him that $30,000 for the ranch and $17.00 for the sheep must be net to you? (Objection.) A. Yes, that is what I told him, that is the price we had to have net. Q; And you told him that after he had suggested to you that the ordinary price was 5 per cent commission and 25 cents a head for selling sheep ? A. That was during the conversation he stated the usual commissions was that. Q. It was all during the same conversation ? A. Yes, but the $5,000 commission I understood to be the final — that was after the other talk. Q. When was this commission to be paid ? A. When we had received $30,000.” And on cross-examination as follows: “Q. Which one of the conversations was it where the agreement as to the commissions were settled between you and Mr. Murphy? A. That is the conversation when I was at Arminto. Q. And where was Mr. Murphy? — 468 — A. Well, I don’t know where he was at. I don’t think I asked him over the phone. I thought he was at Basin, but I didn't ask him at the time. Q. I will ask you if you didn’t have a conversation between you and Mr. Murphy when he was at Basin and you was at Arminto on the 16th day of September, 1918? A. It was some time in September. I don’t know the date. Q. And I will ask you afterwards if there wasn’t another conversation between you and Mr. Murphy respecting the commission when he was at Cody and you was at Worland on September'23rd, 1918? A. We only had one conversation where the commission entered and that was when I was at Arminto, a phone conversation.” It will be seen from the above quotations that although in some things there was little conflict in the evidence in regard to the main question what was the agreement as to commissions there was a wide misunderstanding between the parties. The jury accepted defendant’s version as to this, and as the defendant did not receive the $30,000 or $17.00 per head for the sheep it was relieved of any obligation to pay plaintiff any commission. This was a matter peculiarly within the province of the jury, and we, under the well known and often stated rule “that an appellate court should not reverse a'verdict rendered when the evidence is conflicting” have no right to disturb the verdict. Further, we think the jury acted rightly under the evidence, the plaintiff'failed to prove the contract plead by a preponderance of the evidence and in' addition several significant facts appear in the record which tend to show that the plaintiff did not think he was entitled to.be paid his commissions until the defendant had received all the purchase price. At the time the written contract between E'berhard and the defendant was executed at the ranch the plaintiff was present and witnessed the contract and had in his possession the $10,000 for the cash payment and after the signing he took possession of the contract and kept the check and brought — 469 — both to Worland and delivered them to Ira Jones, assistant secretary and bookkeeper of the defendant company; but although, if his allegations and contentions are correct, his commissions were then due and payable from the defendant, he delivered the check without any demand or intimation that he should be paid; and having occasion to write Ira Jones on Oct. 28, more than a month before the time for the final payment as fixed by the contract of sale, in regard to the numbers of the land and water rights and abstract of title to complete a loan he was endeavoring to secure for Eberhard so he could complete the payment of the purchase price, he requested that Jones urge Eberhard to speedily make full payment so he could receive his money, as contained in the following excerpt from that letter: “When Mr. Eberhard left here for the ranch last Wednesday everything was O. K. and he expected to pay more on this deal in a week or so or just as soon as he could get things straightened out at the ranch and get back down to Worland, so, I think it well that he cleans the most of this up at the next payment, as he can just as well as not, and I' need some money soon as well as Mr. Worland will want the most of this settled soon, so, urge Mr. Eberhard if he comes in to make payments as he stated to pay all he can now and then finish up in a short time.” As to the second cause of action, from all the evidence in regard thereto it does not appear that it was ever agreed or contemplated that any commission was to be paid if the sheep were sold for $17.00 per head, except as the extra $5,000, if paid for the lands over defendant’s price, might be intended to include commissions on the sale of the sheep and when plaintiff made demand on defendant by sending an order to Worland on the day before the final payment was due by Eberhard according to the terms of the written contract, it is significant that -the order was for $5,000 only and did not include the amount claimed in the second cause of action as commission on the sheep. We have carefully examined the instructions given by the court and those asked for by plaintiff and refused by the — 470 — trial court, and do not think any reversible error was committed. The jury seems to have been fully instructed as to all questions of law necessary under the pleadings and evidence in the case. All of the principles contained in the requests that were refused that were applicable to the case as made were embodied in other instructions given by the court in different form. The instruction given that is most earnestly objected to reads as follows: “You are further instructed that it is the duty of the jury in this case to first determine under the evidence what the contract ’ for commission, if any, was as between the plaintiff and defendant herein. If you find that the agreement entered into between the plaintiff and defendant was that the defendant instructed the plaintiff that he would sell his ranch property for $30,000 net and refused to pay any commission but instructed the plaintiff that he'must get his commission from some other source, then I instruct you that the plaintiff would not be a broker under the ordinary term but that he would be acting under a special contract, and would not be entitled to and could not collect his commission claimed under his first cause of action until the defendant had ’been paid the $30,000 in full for his property; but if you find that the plaintiff and defendant entered into an agreement whereby the defendant agreed to pay the plaintiff $5,000 if he found a purchaser for the ranch lands at $35,000 and that there was no agreement as to the net amount due the defendant and no agreement as to the plaintiff receiving his commission other than from the defendant, then I charge you' that the law as hereinafter defined pertaining to brokers applies.” The case of Hopkins v. Settles (Okla.), 149 Pac. 890, is one in most respects like the case at bar. In that case a similar instruction was objected to and the Supreme Court of Oklahoma said, in regard thereto: “In' the light of the contentions of the parties and the evidence introduced in relation thereto, this instruction was substantially correct; in fact, while many instructions were given, fairly covering plaintiff’s theory of the case, this is — 471 — the one special instruction that submitted to the jury the defendant’s theory. If defendant’s theory was correct, he was under no obligation to pay plaintiff the amount claimed, and this instruction merely tells the jury so.” We may well adopt/this language as our own in this case, although this instruction also contains plaintiff’s theory as well as defendant’s, which the instruction in the Oklahoma case did'not. Finding no reversible error in the record, the judgment of the lower court will be affirmed. Affirmed. Beard, C. J., and Potter, J., concur.