McFarland v. Boucher

Ladd, J. In June, 1909, the defendant sold 'his farm to Frank Sheldon. Plaintiff claims that he found the purchaser, and in this action sought to recover a commission as agent for so doing. This was denied by defendant, who, while admitting that plaintiff had been his agent for that purpose, contended that such agency had terminated prior to the sale. That plaintiff first directed Sheldon’s attention to the land in November, 1908, is undisputed, but his testimony that he again spoke to him in March or April, 1909, is contradicted by Sheldon. Plaintiff testified that in November, 1908, shortly before his vacation of 'fifteen days' as United States mail carrier, he bad a conversation [718] witli defendant, in which the latter wanted him to 'find a purchaser for his farm at $82.50 per acre, and said he would pay him $1 per acre as commission, if he found one, to which plaintiff responded that he would see what he could do for him; that lie would have his vacation, and could put in a little time at thait, and would see if he could find a buyer; that during his vacation he had several parties out to look at the land; that several days after 'he had resumed work, defendant, at his suggestion, reduced the price to $80 per acre; that defendant spoke about listing the land with others, whereupon plaintiff suggested he had done much work in conection therewith, and should have the exclusive sale for another week, and after that he would not object to putting it in another agent’s hands; also that this was agreed to. The conditions of employment were not disputed, save that defendant testified to fixing the terms of sale at $500 cash and balance on March 1st; and, further, that in a .conversation after vacation, plaintiff had said he had one miore customer to whom he might sell, and asked that the price be reduced; that defendant agreed to take $80 per acre for the next few days; and that plaintiff came around a few days later, and said, “ Well, I can’t sell 'the place.” I Brokers- ex-evidence0/ harmless error, I. To the inquiry, “Wh,at else did you do in finding a purchaser for this land?” the plaintiff answered, “I solicited a good many other people.” The answer was stricken 011^ 011 mo,tio:ilu Counsel argue that the evidence was admissible as tending to show ajQrfc abandoned the agency. See Clements v. Stapleton, 136 Iowa, 137. No evidence of abandonment had then been adduced, and, even, if it had been, there was nothing to indicate that the solicitations were subsequent to the alleged abandonment There was no error; but, even if there was, the witness was allowed to testify subsequently of having talked to Sheldon and [719] sliown the place to another, and the ruling was without prejudice. 2. Same: agency: termination: burden of proof: instructions. II. In the second instruction, the court told the jury ■that the burden was on plaintiff to prove his cause of action as alleged; and in the third instruction that if the plaintiff had shown by a preponderance of the ■evidence “that while said employment as •agent continued, one’ Sheldon was induced to apply to defendant to purchase said farm,” and as a result of negotiations, had purchased it, plaintiff was entitled to recover; but if the agency had terminated prior to that time, a verdict should be returned for defendant. This was correct, for the purchaser must have been found during the existence of the agency, and if so shown by a preponderance of evidence, this would suffice. Neither instruction cam be construed as casting the burden of proof on plaintiff to negative the alleged abandonment of the agency. As contended, agency having been proven, the burden was on defendant to show that it was subsequently abandoned. Clements v. Stapleton, supra. 3. Same. The jury was not instructed on the subject of abandonment, but, -as the instructions given were correct, the omission to instruct om the burden of proof in- this particular, in the absence of a request, was not error of which appellant may be heard to complain. Harvey v. City of Clarinda, 111 Iowa, 528; Kid v. Pill & Medicine Co., 91 Iowa, 261; Martin v. Davis, 76 Iowa, 768. 4. Agency: duraucm. III. Instruction 3% is criticised. It is said the court erred in saying that if the period of the agency was not fixed, it would continue for a reason'able time. The rale was held to be as stated in the instruction in Harris v. Moore, 134 Iowa, 704. [720] 5' "donmeTitevil dence. [719] The court also told the jury that, if “the plaintiff told defendant that he couldn’t sell the place, or that in sub [720] stance, and the 'defendant understood from such conversation that plaintiff had abandoned the agency, and plaintiff did not, with defendant’s lmowl4 edge, make further efforts to sell said premises, then said agency would be terminated.” According to plaintiff’s testimony, all he had undertaken was to “put in a little time” and “see if he could find a purchaser.” If so, then a statement, if made by him, after repeated efforts, that he could not sell the place, plainly indicated that he had given up the attempt, and plaintiff had the right so to understand, and the court w>as not in error in so advising the jury. The criticism of the fourth instruction is so manifestly unfounded that no consideration is required. The judgment is affirmed.