Neff v. Schrader

[215] Statement. BeoNsoN, J. Plaintiffs seek to recover from defendant $565 as a brokerage commission. The complaint alleges that defendant listed with plaintiffs, in 1919, his land, consisting of 144 acres, for sale at $90 per acre net to defendant, upon the agreement that plaintiffs should receive, as profits in making the sale, all in excess of $90 per acre for which said land might be sold; that, pursuant to such agreement, plaintiffs procured a financially responsible purchaser to whom defendant sold his farm at $100 per acre; that a written contract for a deed was made with the purchaser and possession of the farm delivered to Mayden by defendant; that, pursuant to a trade whereby property located in Denver was taken in exchange, plaintiffs allowed a discount from their commission of $575. That defendant paid to plaintiffs $300, and there is a balance of $565 due. Defendant, in his answer, alleges that such land was listed with plaintiffs at the stipulated price of $90 per acre net to him, with the agreement that plaintiffs should receive, as profits for making the sale, all in excess of $90 per acre, when the land was fully paid for and a deed given for land to the purchaser; that, pursuant to such agreement, plaintiff secured one Mayden to make a contract with defendant for the purchase of the land for $14,400; that the purchaser paid $950 in cash [216] and argeed to pay $2,000 on Nov. 1st, 1919, whereupon a deed should issue; that, after the contract had been signed, plaintiffs and defendant agreed that the amount due plaintiffs for commission was $565, to be paid to them out of the $2,000 payment to be made by the purchaser on Nov. 1st, 1919, and in no other way; that, pursuant thereto, defendant made out an order directing the First National Bank of Oakes, North Dakota, to pay plaintiffs $505 whenever such purchaser should make payment of the $2,000 due Nov. 1st, 1919; that the purchaser took possession of the land about Sept. 1st, 1919, and threw it up Oct. 1st, 1919; that he has never made payment of the $2,000; that defendant has at all times been ready, willing, and able to go ahead and fulfil the terms of the contract and that the purchaser refuses and neglects so to do. In the evidence the following facts appear: Defendant resided on his farm of 144 acres in Dickey county. He listed the farm for sale with plaintiffs at a stipulated price of $90 net to him, with the agreement that plaintiffs should receive, as commission upon a sale, the price in excess thereof. Plaintiffs brought a purchaser, one Mayden, to defendant’s farm. Through negotiations had, defendant went to Denver, Colorado, there to inspect Mayden’s house and lot, proposed to be traded as part of the purchase price for his farm. Upon the return of the parties to Nebraska, a contract dated July 14th, 1919, was made between the parties whereby defendant agreed to convey his farm to Mayden for a consideration of $14,400 to be paid as follows: $950 in cash; $2,000 cash on Nov. 1st, 1919; $1,200 due July 25th, 1920; and $7,000 through Mayden’s note and mortgage upon the land due Nov. 1st, 1924. Further, Mayden agreed to give in payment his Denver property, valued at $5,000, siibject to a mortgage for $1,750, which defendant assumed and agreed to pay. The contract provided for the execution and delivery of warranty deeds, the furnishing of abstracts showing good and sufficient title, and the transfer of possession of both properties on Nov. 1st, 1919, at which time settlement would be made in accordance with the contract. In the sale of the Denver property as part of the purchase price for defendant’s farm, it was agreed between plaintiffs and defendant that $500 should be deducted from their commission and also $75, one half of defendant’s expenses upon the trip of inspection to Denver. Tm217 mediately Mayden. paid to defendant $950, pursuant to tbe contract. On July 16tb, 1919, defendant, after bis return borne, wrote plaintiff Neff in part, as follows: “Now, Mr. Neff, as your commission between you would come to $865 I have not seen Mr. Bailey as yet. I promised bim tbat I would give bim $300 if be made tbe deal. Now I’ll give tbe figures wbicb I bope will be correct. Tbe full commission would be $1,440 deducting as you agreed $500, also balf of my expenses going and returning from Denver I figured up all my expenses wbicb was $150 and balf of tbat would be $15. Tbat would leave you and Mr. Bailey $865. And if Mr. Bailey demands tbe $300 wbat will I do about it ? So I will keep out tbat amount and you bad better come up bere and settle between yourselves. So I will inclose draft for $300 as I think it would be fair tbat you fellows would wait for tbe balance until Nov. 1st,' wben we make full settlement, but, you come up and I’ll make it satisfactory with you.” Shortly afterwards, defendant sold to Mayden bis personal property upon tbe farm. Mayden’s son came and took possession of tbe farm and for a short time, apparently, lived with the defendant on this farm. Then, on Sept. 9th, 1919, defendant moved to Denver. Prior to this time, in August 1919, defendant saw Neff. Defendant gave an order for tbe commission due plaintiffs and left tbe same at a local bank. In tbe testimony there is a dispute concerning tbe contents of this order. Defendant testified tbat tbe order directed tbe bank to pay plaintiffs $565 wben Mayden paid tbe $2,000 and complied with tbe contract. Plaintiffs testified tbat tbe order directed tbe bank to pay them $565 on Nov. 1st. 1919. Tbe order was lost. Before defendant left for Denver be deposited with tbe bank a warranty deed for bis land signed by himself and bis wife, also a blank mortgage for $7,000 to be signed by Mayden. Defendant Neff said there was some complaint about tbe title to bis land but be bad it straightened out in about sixty days’ time. At Denver, .the tenant in possession of tbe Denver property paid defendant one month’s rent, $30. Defendant, however, testifies tbat he never received nor took possession of tbe property. In April 1920, defendant returned. Some dispute bad arisen between Mayden and defendant concerning defendants representations as to whether bis land was subject to flood [218] ing. Mayden bad refused to make further payments. In May or Juno, 1920, Mayden and defendant agreed to cancel their contract. This was done without notice to, or the consent of, the plaintiffs. Pursuant to their agreement, defendant retained the $950 paid by May-den and received the return of his land. Mayden received the $30 rent paid to defendant and the return of the Denver property. On Oct. 1921, this action was instituted. The trial court submitted the issues to the jury who returned a verdict in favor of the defendant. Thereafter, upon motion for judgment notwithstanding the verdict the trial court granted such motion and, pursuant thereto, judgment was entered in plaintiff’s favor for $565 commission and interest. Defendant has appealed from the order granting judgment non obstante and from the judgment entered thereupon. In an extensive and able memorandum opinion the trial court has found, as a matter of law, that the evidence disclosed that plaintiffs had fully completed their contract and had earned their commission; that defendant entered into a valid and binding written agreement with Mayden, who, from the evidence disclosed, was financially able, ready, and able to respond and in recognition of such valid agreement the defendant voluntarily made a contract to cancel such contract with the purchaser and to retain the profits accrued under such contract. Opinion. I am of the opinion that the trial court did not err in granting the motion for judgment non obstante. Laws 1921, chap. 133. This court has frequently recognized the principle that 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 his principal is entitled to his commission. Koffel v. Rhud, ante 194, 191 N. W. 464; 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. Through defendant’s admissions, it [219] appears that a purchaser was produced for defendant’s land upon terms satisfactory to defendant. A valid, binding contract was made between the parties. Defendant recognized and acted under this contract. He delivered his farm to Mayden. He received rent from the Denver property. No question is raised concerning Mayden’s financial responsibility and ability to perform the contract. Through mutual dealings, between Mayden and defendant, subsequent to this valid contract, apparently, in part, because of defendant’s title and his representations concerning his land, this contract was canceled without notice to, or the consent of, the plaintiffs. Defendant retained the initial payment of $950 cash paid by Mayden upon the contract. Plaintiffs are clearly entitled to their commission. Upon the issues plaintiffs established their cause of action; defendant’s defense failed. Even though it be conceded that plaintiffs agreed, pursuant to the order, to accept their commission when Mayden paid the $2,000 due Nov. 1st 1919, and that such agreement was valid, nevertheless, the settlement made between the parties which recognized the contract and, then terminated it by a new agreement, also recognized plaintiffs’ right to their commission pursuant to the terms of such contract. Defendant, by his own act, waived his right to collect from Mayden $2,000 and waived the right, if any there were, to compel plaintiffs to wait for their commission until such payment was made. 9 C. J. 605; Smith v. Eelis, 191 Iowa, 1307, 184 N. W. 385; Red River Valley Co. v. Hutchinson, 41 N. D. 193, 170 N. W. 317. Bikdzell, Oh. J., and Ci-ieistiaNsoN and G'kace, JJ., concur.