Marble v. Bang

Mitchell, J. The cause of action, if any, alleged in the complaint, is for commissions earned by procuring a purchaser for defendant’s property, ready and willing to buy on the terms authorized, and not for damages for a revocation of plaintiff’s agency before the expiration of the time named in the agreement of the parties. This disposes of plaintiff’s contention that he was entitled to at least nominal damages on the latter ground. Construing the agreement (Exhibit A) most “favorably to the plaintiff,—that he would have earned his commission upon producing a purchaser ready, able, and willing to buy on the terms therein named,—and assuming (what is not very clear) that Merritt, the alleged customer, was ready and willing to buy on the terms named in the memorandum, (Exhibit B,) the plaintiff was not entitled to recover, for the reason that the terms named in the latter were not those authorized by the defendant. Authority to sell property is, unless otherwise provided, authority only to sell for cash on delivery of the deed. By the terms of the sale which plaintiff assumed to make, $1,000 of the purchase money was not to be paid until “the patent for said land is issued and delivered.” This was in excess of plaintiff’s authority. The doctrine of “substantial performance of a contract,” which plaintiff invokes, has no application. This is a question of authority, and not of performance. Plaintiff’s contention is that this departure from the power was immaterial, because the amount to be paid down by the purchaser was more than would be coming to the defendant out of the entire purchase price, after deducting plaintiff’s commissions. But this is not tenable, for there was no agreement that plaintiff was to receive his commission out of a deferred payment. According to the agreement, plaintiff was to receive as his compensation all that the property brought over [279] $2,000, up to $3,000, and two-thirds of what it brought over the latter sum. Consequently, of the $1,000, the payment of which was deferred, the plaintiff would be entitled to two-thirds, and the defendant to one-third. (Opinion published 55 N. W. Rep. 1131.) Order affirmed.