Myers v. Coleman

Calhoon, J., delivered the opinion of the court. This is an action by appellants to recover $85 of commissions from Coleman which they aver he owes them for the sale of cer [230] tain land of his at the price of $1,700; their commissions being five per cent of the amount of the sale. It is shown by the testimony of the appellants themselves as witnesses that the following are the facts: The written contract itself is without date, but was made after the sale is alleged to. have been made. The alleged sale occurred.on some day between the 1st and the 10th of September, 1906, and the contract on which recovery is sought to. be had is in the following words, some time subsequently made: “Witnesseth that A. V. Coleman has this day sold to W. T_ Rutledge 60 acres off the south side of N. W. i of section 25— 16 — 7 on or before November 1st, 1906, at $1,700.00 less five perct. com. [Signed] A. V. Coleman.” This is all of it and just as produced — nobody bound but Coleman — unilateral. This written contract, Myers testifies,, was made after the sale-, and he states that, in September, Rutlidge came to his office from Indiana and was looking up a site for a home. Myers told him that he knew of a place he thought wouid suit him if he could get it. He was referring to this place-of Coleman’s. Myers testifies that, having occasion to go into Coleman’s neighborhood, on that same day he “rain across” Coleman and asked him if he would sell the land, and he said “Yes,” and when asked what he would take for it, finally said that he would take $1,700 for the place-. Accordingly, Myers took Rutlige and his wife to the place, and Rutlidge expressed himself as very well satisfied, as did Mrs. Rutlidge, and so-Myers told Coleman, who promised to come over to town the next day or the day after the next. Myers testifies that Coleman did come over, and that he told him that he had sold his place, and he said it was all' right, and the contract hereinbefore shown was written and signed; Myers telling him that: “We had better have a little writing to show the sale.” And Myers says he told him that Rultidge and his wife had gone back home, meaning to Indiana. It is nowhere suggested that, beyond the signing of the contract, Coleman ever promised to pay any com [231] missions, and it is plain that Myers & King were, up to that time, acting purely and simply as the agents of Rutlidge, who wanted to buy the property. Myers further testifies that, about two weeks after that contract was signed, Coleman came to his office and said: “This sale is cash, I suppose.” To which Myers answered: “Certainly.” And then Myers said to Coleman : “The parties are expecting to want to do some improvements, and he didn’t say anything against it.” Subsequently after Myers & King had received a letter from Rutlidge, Myers or King spoke to Coleman in regard to improvements, and the witness says: “There he (meaning Coleman) kicked out of harness entirely.” And then Coleman said that his wife would not sign the deed, and he could not sell it. Myers testifies that he believes Rutlidge was prepared and willing to carry out his contract. No money was ever tendered to Coleman. There is no other evidence showing that Rutlidge was willing to pay the cash and carry out the contract, except that Myers supposes he would. King testifies that, a week or ten days after Rutlidge had gone home to Indiana, he told Coleman that a letter from Rutlidge said that he wanted to make some improvements on the place before his family came South, to which Coleman answered that he didn’t know whether he wanted the improvements on it or not, and King told him it wouldn’t do any harm to improve the place, and Coleman then said: “ ‘Well you know this place was sold for cash,’ and I said, ‘Yes> I know it was sold for cash. The contract will be completed so far as the money is concerned.’ ” And King testifies that, about a week after that, Coleman came to the office and seemed indifferent about the sale, and finally said : “I don’t believe I want to sell it.” King then told him that his firm would make him sell it. He testifies further, thus: “Q. State whether you were ready and able to carry out ¡your part of the contract for the amount of $1,700? A. Yes, sir.” And further he told Coleman that it was a cash transaction, and that- whenever Coleman was ready to make the deed, [232] which was not to be later than the 1st of November, which gave him time to get his crop off, the firm of Myers & King would be ready to pay him his money; and King testifies that on the 1st of November his firm was ready to pay him the money. The land to be sold was Coleman’s homestead on which he and his wife lived. There was never any demand for deed or tender to Coleman of the purchase price of the land. Five per cent of the amount of the sale price was the usual commission to be charged, as is shown by the testimony. Outside of the written unilateral contract, there was never any reference to .conv missions in any conversation, and, unless that contract shows it, there was no obligation on the part of Coleman to pay any commissions whatever. It seems to- us, on the facts, that the services were rendered to> Kutlidge, and not to Coleman. Coleman was quiescent. lie was approached by the brokers to know if lie would sell, and he signed the written contract, which imports at most that he would accept $1,100, less five p.er cent commission, and so it appears that Kutlidge, if anybody, was to pay the commissions to the brokers. It appears that no money was tendered to Coleman although the transaction was to' be for cash. ’ It also seems to us that there was a change in the offer of Myers & King, for their customer, Kutlidge, in that Kutlidge wanted to put improvements on the place while Coleman occupied it. On the facts there is no liability. Affirmed.