Scott v. Gage

Fuller, J. This appeal is from a judgment dismissing the complaint in an action by real estate brokers to recover a commission of $500 for procuring a purchaser for the sale of a farm, which, it is claimed, contained 16 acres less than the amount represented by respondent, by reason of which fact the prospective purchaser refused to consummate the transaction. At the conclusion of all the evidence both parties moved for the direction of a verdict, and it is conceded that there were no facts for a jury to determine. As none of the numerous errors assigned by counsel for appellants relative to the rulings of the trial court on questions of evidence are discussed in their brief, the subject can receive no consideration. Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194. In the memorandum of sale signed by respondent the land is listed at 440 acres, and described as follows: “N. W. i, 1, E, i N. E. i; 2 — 103—58; S. W. i, 36, Lots 3 & 4 in S. E. i, 36-104 — 53.” Although respondent read the foregoing description before signing the instrument, which was written by one of the appellants, it appears that a mistake was made as to the range, and there is testimony sufficient to show that lot No. 4, containing about 31 acres, was included in the description without the knowledge or consent of respondent, who, as a matter of fact, did not [287] own such land, or any part thereof. Moreover, it was shown by the undisputed evidence that the premises border upon and meander a lake, which has receded to such an extent that the farm actually contains more than 440 acres without including lot No. 4, and, in view of all the circumstances, it is evident that appellants were not entitled to recover. The judgment dismissing the complaint and for costs is affirmed.