Grangaard v. Betzina

Bruce, J. We are of the opinion that the trial court erred in not directing a verdict for the defendant. There was a complete variance between the proof and the complaint. In his complaint the plaintiff pleads a contract of employment for finding a purchaser for the appellant’s land, and that he was to have a dollar an acre for finding such purchaser, without regard to the price to be paid by such purchaser for the property. In his evidence he declares that he was to find a purchaser and to cause the sale of the land to him at $50 per acre, out of which purchase price the respondent was to receive $1 per acre. The plaintiff himself testified: “He wanted $50 per acre for the land. Out-of this he agreed to pay $1 per acre for commission.” In such a case the most liberal rule that the plaintiff can ask is that the evidence shall establish the issues. On these issues the proof is positive and uncontradicted that the plaintiff did not furnish a purchaser who at any time was ready and willing to pay $50 an acre for the land. The purchaser (Yandrovac) testified: “He (Grangaard) said I could have the land for $50 per acre. Mr. Grangaard said I could not have it for less than $50 per acre. I said I would not pay that.” The testimony is also positive that the land was sold by the defendant to Yandrovac for about $48 per acre after Yandrovac had positively refused to pay any more. It is not necessary for us to consider the decisions in other states, upon the question which is presented to us, as, it is quite clear that under the law as settled in this jurisdiction and under the evidence introduced in this case the plaintiff cannot recover upon the contract which is sued upon. It is well settled, indeed, in North Dakota, that when a man agrees to pay a commission in consideration of the receipt of a certain price, he means what he says, and nothing more, and the fact that one has agreed to pay $1 per acre if the broker sells his land for $50 an acre does not make him liable for such commission, and [271] under such contract if lie afterwards sells the land for $48 an acre, and even to a person presented by the broker, provided tbat tbe person bas positively refused to purchase at $50 and tbe seller bas in no way prevented tbe broker from perfecting tbe sale of sucb land at tbe said sum. Tbe first of tbe cases wbicb bold to tbis rule is tbat of Anderson v. Johnson, 16 N. D. 174, 112 N. W. 139. In that case tbe situation of tbe parties was reversed, but tbe same principle applied. In it tbe defendant agreed to pay tbe plaintiffs a commission of $100 if they obtained tbe sale to him of certain real estate at a stated price, and tbis court held tbat it was incumbent upon tbe plaintiffs in an action to recover sucb commission to prove tbat tbe person produced as tbe owner of sucb property was willing to sell at sucb stated price. “Plaintiffs,” tbis court said, “must stand on their contract, and in order to recover they must show tbat Staiger sold tbe property to defendant, or at least was willing to do so, for $2,300. What Staiger may have previously stated to plaintiffs as to bis willingness to sell upon sucb terms is wholly immaterial as well as incompetent. . . . Was defendant precluded from thereafter making tbe best bargain be could and by doing so would be become obligated to tbe plaintiffs to pay them tbe agreed commission, wbicb, under tbe contract, was to be paid only on condition tbat they were able to get him tbe property at $2,300 ? Clearly not.” Tbis case was cited with approval and followed in Fulton v. Cretian, 17 N. D. 335, 117 N. W. 344. It is in accordance with quite a. long line of authorities and with tbe general rule wbicb is expressed in Terry v. Bartlett, 153 Wis. 208, 140 N. W. 1133, and to tbe effect tbat a broker employed to sell land for a specific price does not perform bis engagement so as to be entitled to commissions by producing a purchaser who is not willing to pay the price named, and even though tbe owner thereafter sells it to him at a lower price, except where tbe owner does not act in good faith or prevents tbe broker from performing bis contract. Good v. Erker, 170 Mo. App. 681, 153 S. W. 556; Gage v. Billing, 12 Cal. App. 688, 108 Pac. 664; Montgomery v. Slater, 87 Kan. 848, 126 Pac. 1085; Steere & Ballah v. Gingery, 21 S. D. 183, 110 N. W. 774; Paulson v. Reeds, ante, 141, 156 N. W. 1031. In the case at bar there is no proof of bad faith on tbe part of tbe defendant. Tbe evidence, on tbe other band, is positive and uncontra [272] dieted that the purchaser absolutely refused to buy at the price of $50 per acre, and it is perfectly clear that tbe defendant could have gained nothing by upsetting any supposed agreement for $50 an acre. All he received was $48 an acre. If the purchaser could have been induced to pay $50, and even though the defendant would have had to pay.the $1 an acre commission, he would have made a dollar an acre or $240 more than by the transaction he actually consummated. The judgment is reversed and the cause remanded, with directions to enter judgment for the defendant, dismissing the action, and for the costs thereof.