Traynor v. Morse

Ragan, C. This case was in this court once before. (See Morse v. Traynor, 26 Neb. 594.) The action is by Morse & Bruner against Traynor to recover commissions for effecting the sale of some real estate belonging to Traynor or his wife. The trial in the district court resulted in a judgment in favor of Morse & Bruner, to review which Traynor has filed a petition in error here. We think the record establishes the following facts: That in 1887 Morse & Bruner were real estate agents in the city of Omaha; that Traynor placed his property in their hands for sale at a price of f10,000; that for effecting a sale the real estate agents were to be paid the usual commissions charged by real estate agents; that some time early in 1887 Traynor notified Morse & Bruner that he had raised the price of the property to $12,000 net to- him, and that in June, 1889, Morse & Bruner, through a subagent of theirs named Seay, intro [596] duced to Traynor a man named Stewart, who purchased tliis property for $12,500. On the trial Traynor contended that before the sale of the property to Stewart he had taken it out of the hands of Morse & Bruner for sale. We do not think the evidence sustains this contention of Traynor. Another contention of Traynor at the trial was that prior to the salé of the property to Stewart he had notified Morse & Bruner that he had raised the price of the property to $14,000. Morse & Bruner claimed that they had never received such notice, and if the finding' of the jury includes a finding that Morse & Bruner had not received such a notice, the evidence sustains that finding. But the principal point litigated upon the trial was this: Traynor claimed that when Stewart was introduced to him by Seay and the price of the property inquired about he said to Stewart and Seay that the price of the property was $14,000; that one of these parties then replied that he understood Morse & Bruner held -it for sale at $12,500, and thereupon he, Traynor, answered that if he could get $12,500 net for the property it would be all right, and that he did sell the property to Stewart for $12,500 net. Morse & Bruner’s contention on this issue was that Traynor did not-use the word “net,” but sold the property to Stewart for $12,500. The court instructed the jury as follows: “You are further instructed that if at the time of the sale, on June 4, 1887, the plaintiffs had received notice to sell the property at $14,000, and if George Seay, as the agent of Morse & Bruner, introduced the Stewarts to the defendant and by defendant’s direction and consent the sale was effected at $12,500, the defendant would be liable to pay a commission to the plaintiffs, unless Seay, acting for the plaintiffs, agreed with defendant that the sale should be made at $12,500 net, in which event plaintiffs cannot recovei'.” The defendant requested the court to instruct the jury as follows: “The jury are in [597] structed that if they believe from the evidence that the property was still in the hands of Morse & Bruner for sale, and that the price at that time had been given to Morse & Bruner as $14,000, and that when Seay came to Traynor the price was fixed at $12,500 net, you will find for the defendant, although you may find that the property was still in the hands of Morse & Bruner, and that Seay was a subagent of theirs.” The court modified the instruction thus: “Provided you find from the evidence that Seay consented and agreed to a sale at $12,500, net.” The action of the court in giving the instruction first quoted, and in modifying the second one, it is insisted by counsel for plaintiff in error, was erroneous. In view of the facts as disclosed by the evidence in this case we have reached the conclusion that the court did not err in giving the first instruction, nor in modifying the second. Morse & Bruner had this property for sale at $10,000. The price was then raised to $12,000 net, and subsequently, as claimed by Traynor, the price was raised to $14,000; and if Morse & Bruner brought and introduced to Traynor a purchaser ready, able, and willing to purchase this property at any one of these three prices, and Traynor consented to and did sell the property to such purchaser at any one of these prices, then his liability for commissions to the real estate agents attached in the. absence of an agreement on the part of the real estate agents to forego his commission. The judgment of the district court is right and is AFFIRMED.