Marple v. Ives

Waterman, J.- 1 Exceptions are taken to certain rulings of tbe court sustaining objections to questions asked by plaintiff of tbe witness King; but the witness answered in each instance, and bis answers were allowed to stand, so no prejudice could have resulted. 2 Plaintiff was employed by defendant to find a purchaser for a stock of goods. He found one King, who seemed likely to buy, if real estate be bad were accepted in payment. To bring tbe matter to a conclusion, defendant made tbe ■ following written proposition (tbe real estate referred to being that owned by King) : “Will accept tbe 320 acrés, 3-J miles south of Scotland, at $22.50 per acre, provided tbe description is a guarantied one from Mr. King. Said land to be accepted subject to a $2,000 mortgage, at 8 per cent interest, with interest and taxes paid to date. Abstract and title to be clear from all cloud on title, and showing no ineumbrance other than tbe $2,000 mentioned above; Mr. King or owner to pay difference of $800.00 in cash or good notes. Party to accept deal by wire, subject to approval, and to reach here not later than Tuesday, March 10, 1891. [Signed] J., E. Ives.” King came to 604 Des Moines, where defendant then was, and signified that he would accept the offer. His real estate was incumbered by a second mortgage for six hundred and seventy-five dollars, and there was interest due on the two thousand dollar mortgage, and also taxes unpaid. He offered to give a note for the eight hundred dollars bonus which he was to pay, and we think the evidence shows it to have been a good note. The jury would have been warranted, also, in finding that he was able and willing to pay off the second mortgage, the accrued interest ,on the two thousand dollars, and the taxes due; for we think, under the offer, it was King’s option to say whether he would pay the bonus in a note instead of cash. Had this been accepted by defendant, King would have been left with- cash sufficient to put the title in the required condition. In one respect, however, the offer of defendant was not complied with. No abstract was furnished or offered, showing title in King. This was a condition of defendant’s offer. To have bound him, his proposition should have been accepted strictly according to its terms. Gilbert v. Baxter, 71 Iowa, 327. We grant that plaintiff’s commission was earned as soon as he found *a purchaser able and willing to buy on the terms proposed. Boland v. Kistle, 92 Iowa, 369; Hanna v. Collins, 69 Iowa, 51. The fact that his principal refused to sell to the customer produced will not defeat his right. Ford v. Easley, 88 Iowa, 603. But, if it appear^ the sale fell through because of some fault of the intended purchaser, no comipission is earned, for then the agent has failed to find a buyer able and willing to accede to the proposed terms. As we have said, no abstract of title was produced or offered, and it was a part of defendant’s proposition that one should be furnished. He had a right to insist that his proposition was not accepted until this was done. For this reason, we think the verdict was properly directed, and the judgment will be aeeiemed.