Harson v. Pike

Davison, J. The appellee, who was the plaintiff, brought an action against Pihe, alleging in his complaint that the defendant, in April, 1855, caused to be published an advertisement, a copy of which is thus set forth in the record: “Two hundred dollars reward for a buyer of my farm at five dollar per acre; a mile square; the best in the State for a mill seat; and water, wood, pasture, meadow, vegetables, fruit and grain, sufficient for a large family, and one hundred head of cattle. Twelve miles south of Laporte, in AbSié'township, Laporte county, Indiana.” “ Moses H. Pike.” It is averred that the plaintiff, confiding in this promise, did, in June, 1855, procure a purchaser for the above farm; and that defendant actually sold said farm to the person so procured by the plaintiff upon the terms, and for the price, mentioned in the advertisement, and thereby became liable to plaintiff for the $200 therein stated, &c. Defendant’s answer contains two paragraphs: 1. That he is not indebted to the plaintiff, as alleged in the complaint. 2. That he never caused to be published an advertisement as therein alleged; that the plaintiff never procured a purchaser of defendant’s farm, nor did he ever sell his farm to a purchaser procured by the plaintiff. There was a verdict for the defendant. New trial refused, and judgment, &c. The record, though it does not profess to contain all the evidence, sets forth so much of it as was deemed sufficient to explain certain exceptions, taken by the plaintiff to rulings of [141] the Court. The evidence set forth proved these facts: “ Defendant posted up advertisements offering the reward as stated in the complaint. An advertisement containing such offer came to the knowledge of the plaintiff, who, on the strength of it, and with the hope of obtaining such reward, called the attention of one Joseph Clark to the defendant’s farm and the price at which it was offered, and caused and procured him to visit the farm and examine it. During such visit and examination he, Clark, purchased the same farm of the defendant at the price mentioned in the advertisement, and before the offer therein noted had been in any wise withdrawn. The plaintiff, very soon after Clark's purchase, demanded the offered reward of the defendant, but he refused payment. Defendant, when he sold the farm, had no notice of the plaintiff’s having procured Clark to examine and purchase it. Upon the case thus made, the Court charged the jury: “ That to authorize a recovery it must have been proved that plaintiff procured Clark to buy the farm, and that defendant, before he sold, was duly notified of that fact.” Having excepted to this charge, the plaintiff moved the following instruction: “The question as to notice to the defendant is notin issue by the pleadings.” The Court refused so to instruct the jury, and the plaintiff excepted. The giving of the charge, and the refusal of the instruction, make the only points noticed in the appellant’s brief. As we have seen, the charge given, in effect, tells the jury that the plaintiff, having procured Clark to buy the farm, could not recover the reward unless the defendant, prior to the sale, had notice of such procurement. "Was such notice essential, in this case, to a recovery? Mr. Story says : “ The offer of a reward or compensation for the performance of any service, is a case of a conditional promise; and if any one coming within the terms of the offer shall, before its revocation, perform the service, a legal and binding contract arises to pay the reward.” Story on Cont. § 380. The exposition is sustained by various well considered cases, and seems to be correct. Freeman v. Boston, 5 Met. 56; Wentworth v. Day, 3 id. 352. We know of no authority requiring the notice contemplated in the charge of the’Court, nor is the effective purpose of such notice at all [142] perceivable. If before tbe offer of a reward “ is retracted, one so far complies with it as to perform the labor for which the reward was stipulated, it is the ordinary case of labor done on request, and becomes a contract to pay the stipulated compensation.” Wentworth v. Day, supra,. Of course, until the performance, the offer of the reward is a proposal merely, and not a contract, and therefore may be revoked at pleasure. But here the defendant’s offer remained unrevoked when he sold his farm to a vendee procured by the plaintiff. This case seems to be within the Tule stated in the authorities to ■which we have referred, and we are therefore inclined to hold the charge given erroneous. It follows, there was error in the refusal of the proposed instruction; because, if notice to the defendant of the procurement, anterior to the sale, was not essential to a recovery, then the question of such notice could not have been legitimately in issue by the pleadings. Jno. B. Wiles, for the appellant. „ James Bradley and D. J. Woodward, for the appellee. Per Ouriam. The judgment is reversed, with costs. Cause remanded, &c.