Clark v. Lanam

'SMITH, J. Appeal from the 'circuit -court of Sanborn county. The complaint alleged that the plaintiff entered intd a. contract with [112] defendants, whereby they listed a certain quarter section of land with plaintiff at a selling price of $26 per acre,. contracting and agreeing with plaintiff that, if he should find a buyer for or sell said land at $26 per acre, defendants. would pay plaintiff as commission the sum of $1 per acre; that about the 15th of April, 19°7, plaintiff obtained one William Finderman as a prospective buyer, -and showed him the land and quoted him the price of $26 per acre; .that thereafter the defendants dealing directly with Finderman sold-him the land, and thereby became and are indebted to plaintiff in the sum of $160 for commissions. The answer is a general denial, a specific denial that plaintiff sold the land to Finderman, and a further specific denial that the land was ever listed with plaintiff for sale. Verdict and judgment against both defendants for the full amount claimed. Motion for a new trial was denied, and defendants appeal from the judgment and -the order denying a new trial. Some 21 errors are assigned in the record, only 3 of “which we deem it necessary to consider. The nineteenth, twentieth, and twenty-first assignments are, in substance, that the evidence is insufficient to justify the verdict of the jury, or to support the judgment against either of said defendants; for the reason that there is no evidence in the record to show that plaintiff ever procured a purchaser for the land. At the trial, plaintiff testified, in substance, that about the 21st of February, 1907, he had a conversation with Mr. and Mrs. Fanam in which they desired to know if he could find a buyer for their land to which he replied he would tty to sell it for' them; that they told him the price was $25 an acre net to them, or $26 an acre if he should sell it, in which event he was to receive $1 an acre as commissions; that in the conversation with them they urged him to make an effort to sell it for them; that along in April, 1907, he met one Mr. Finderman at his office, and had a conversation with him about the land. -Upon objection, plaintiff was not allowed to state this conversation, but, over objection, was permitted to state that he went to see Mr. Fanam, one of the defendants, and told him he had found a man who wanted to buy the land, and would give $25 an acre for it, and Fanam wanted to know if plaintiff wanted any commission, to which he replied that he did, and Fanam ¡then said the purchaser would have [113] ■to pay $26 an acre for the land. . Plaintiff further testified that he took Pinderman, out to see the land, told him it was the cheapest land on the market, and did everything he could to get him to buy it; that this occurred before the conversation with Panam. Plaintiff further testified that he told panafn Pinderman would give $25 an acre for the land, $1,000 down and the rest of it next^ March, and give him the use of it that year. Plaintiff was then permitted to testify that Pinderman had purchased the land, but, upon objection, was not permitted to state from whom Pinderman -bought it. H,e further testified that he had never been paid any commission for the sale of the land. It is conceded that the Panams sold the land to Pinderman at $25 an acre. The record fails to show that pinderman ever offered, or was willing to pay' $26 an acre for the land. The record does show that plaintiff told the Panams they should demand $26 an acre for the land from Pinderman; but it is clear that the Panams did not at finy time agree to pay a commission of $1 an acre on a selling price of $25 per acre, nor is it claimed -that the panams received anything in excess of $25 per acre, the net price at which the land was listed with plaintiff. Piad the defendant sold* the land to Pinderman at $26 per acre, or any price in excess of $25 per acre, it is perfectly clear plaintiff would have been- entitled to a commission. It is not claimed that defendants gave plaintiff the exclusive sale of the land nor is there any claim that they could 'have obtained a price in excess of $25 an acre from Pinderman. Under these facts, it is apparent that -plaintiff never furnished a purchaser for the land, ready, able, and willing to take the same at a price which would have entitled plaintiff to- any commission whatever on the sale, nor have defendants received any sum greater than the net price at which the land was listed. The case falls clearly within the facts and the -principles involved in Ball v. Dolan, 21 S. D. 619, 114 N. W. 998, 15 L. R. A. (N. S.) 272. There was an -absolute want of evidence to sustain the verdict. The -order and judgment of the tidal court are reversed, and the causé remanded for a new trial.