Koffel v. Rhud

Statement. BboNSON, J. This is an action to recover a broker’s commission. The jury returned a verdict for $2,000 in plaintiff’s favor. Defendant has appealed from the judgment and from an order denying judgment [196] non obstante or, in tbe alternative, for a new trial. In a motion to dismiss the appeal plaintiff has presented several questions of practice. In view of the determination upon the merits, it is unnecessary to give consideration to these questions. The facts are: Pursuant to Koffel’s testimony, the defendant, in March, 1920, came to his office in Bismarck and wanted him to procure a buyer for defendant’s land in Tennessee : He told Koffel he would give him a good commission, better than the usual commission: Koffel saw Paul and had him confer with defendant: Paul had some land in Florida: As a result of conferences, plaintiff, defendant and Paul went to Tennessee and to Florida to see the lands: Paul and defendant made a deal whereby defendant’s land in Tennessee together with some property in North Dakota was exchanged for Paul’s land in Florida: Defendant made a deed to Paul conveying the Tennessee land: The consideration designated for defendant’s Tennessee land was $45,000: This Tennessee land involved some 10,000 acres: The value of plaintiff’s services are $1 per acre. Pursuant to defendant’s testimony, he never employed plaintiff to secure a purchaser for the Tennessee land: He had employed Koffel previously as an attorney but had a disagreement with him concerning business transactions: Plaintiff went with him and Paul to Tennessee and Florida: Koffel asked defendant if he wanted to trade for Florida land but defendant said nothing about commission and did not promise to pay any: Defendant and Paul made a trade: Defendant received some 4,500 acres of wood land in Florida. Defendant deeded to Paul some property in Bismarck and in North Dakota and also the Tennessee land: Paul accepted the deeds and the title to the Tennessee land but there is litigation growing out of this exchange which is still pending. Upon cross-examination he testified that he might have told plaintiff that, if he could find a buyer for his land, he might do something good for him; that he told him to try and sell this land for cash; that Koffel brought a buyer and told defendant that he could meet him at plaintiff’s office. The trial court submitted to the jury the issues as to whether there was any agreement between the parties for plaintiff to furnish and bring to the defendant a buyer for his land in Tennessee and whether there was a sale of the land under such ágreement. Also, the issue was submitted of the reasonable value of the plaintiff’s services up to the sum of $10,866. The defendant specifies as error the sustaining [197] of plaintiff’s objections to three questions propounded. These questions are: First, “Is there a suit between you and Paul in which he is claiming something like $4,000 for back taxes from you on the Tennessee land?” Second, “We offer to prove by the defendant now on the stand that Mr. Paul has accepted the deeds to the Tennessee land but refuses to pay within $4,000 of the purchase price, claiming a counterclaim on account of back taxes on the Tennessee land.” Third, “Just tell the jury what the value of the services of the sale of that Tennessee land under the conditions under which it was sold.” Plaintiff contends that through the court’s action in this regard, testimony to show that the sale was not consummated and testimony concerning the value of plaintiff’s services were excluded. Decision. A broker who, pursuant to the contract of employment, has produced a purchaser ready, willing, and able to purchase the land of his principal upon terms satisfactory to the principal is entitled to his commission. Paulson v. Reeds, 33 N. D. 141, 151, 156 N. W. 1031; Harris v. Van Vranken, 32 N. D. 238, 155 N. W. 65; Paulson v. Reeds, 39 N. D. 329, 167 N. W. 371, id., 48 N. D. 90, 183 N. W. 641; Ball v. Dolan, 18 S. D. 558, 562, 101 N. W. 719; Lund v. Bapp, 25 S. D. 439, 127 N. W. 548; Tilden v. Smith, 24 S. D. 576, 124 N. W. 841. The brokerage contract involved is to procure a buyer, not to effect a consummated sale. 9 C. J. 592. Accordingly, the plaintiff was entitled to his commission although the details of the sale and trade have not been fully consummated. Paulson v. Reeds, supra; Minder & J. Land Co. v. Brustuen, 26 S. D. 38, 127 N. W. 546; 9 C. J. 596. Through the verdict of the jury, it is established that defendant employed plaintiff to procure a buyer for his Tennessee land and agreed to pay him a good commission. It is not questioned that plaintiff did procure a buyer for defendant’s land in Tennessee and that a binding contract therefor was made between defendant and Paul. Pursuant to this contract, defendant deeded to Paul his Tennessee land, also some land in North Dakota. Defendant received about 4,500 acres of wood land in Florida. So far as this record discloses, the only reason why the terms of the sale have not been fully consummated is that Paul, or the defendant, claims that some of the terms of this contract have not [198] been fully performed by tbe other party. It is not questioned that tbe purchaser is ready, willing and able to respond, pursuant to tbe contract. Properly, tbe plaintiff brought this action for quantum meruit. Farmer v. Holmes, 35 N. D. 344, 361, 160 N. W. 143. Tbe errors specified concern only tbe action of tbe trial court in sustaining plaintiff’s objections to three questions. Tbe first question was immaterial: It concerned tbe consummation of tbe terms of tbe sale: It did not negative or challenge the existence of a binding contract of sale. Tbe second question likewise was immaterial: It relates to some act concerning a payment of part of tbe purchase price and a counterclaim concerning back taxes. Again this question does not negative tbe existence of a binding contract of sale. Tbe trial court properly excluded the third question for tbe reason, at least, that it is both indefinite and an improper hypothetical question. The judgment and order of tbe trial court are affirmed with costs. BiRdzell, Ch. J., and Chbistianson, J., concur.