Teesdale v. Bennett

SiebboKeb,. J. Plaintiff, as a real-estate agent, sued defendant for commissions which he claims are due him upon [358] tbe contract made at tbe time and under tbe circumstances, stated in tbe foregoing statement of facts, whereby be undertook to procure a customer for tbe purchase or exchange of defendant’s hotel property in tbe city of Lancaster. He avers-that he has fully performed all the conditions of this agreement, and that the sum agreed upon as a commission for such services is due him. Tbe defendant asserts that tbe terms of tbe agreement were that plaintiff should receive the commission if be procured a purchaser for a cash sale at tbe specified price, but he denies that such a sale was consummated. He furthermore contends that upon plaintiff’s own showing it appears that, if he is obligated to pay any commission for the exchange of the properties, it was upon the agreement whereby plaintiff and Armfield & Parker, jointly, undertook to procure and consummate tbe exchange and divide the commission equally between them. There is no question but that a clear conflict arose upon the evidence as to what agreement was originally made between plaintiff and defendant, and that this issue was one necessarily to be determined by the jury. The court so submitted it, and the question is,-does their verdict settle the controversy ? It is insisted that the court erred in refusing to submit to them the inquiry whether the original agreement was superseded by a subsequent one between plaintiff, defendant, and Armfield & Parker. The foregoing statement contains the substance of the evidence bearing upon this question. We find no facts which support the contention. The only transactions on which the claim is predicated are the occurrences-while defendant, plaintiff, and Parker were driving to the Horton farm, when the first interview was had with a member of the firm of Armfield & Parker. It appears that plaintiff and defendant met Parker at Fennimore, by mutual arrangement made in the forenoon of the day, to drive to Horton's farm to negotiate with him for an exchange of the hotel property. The defendant denies that he made any agreement [359] at this or any other time with either the plaintiff or Parker, and also denies that he said or heard anything said between plaintiff and Parker concerning the making of an agreement whereby plaintiff and the firm of Armfield & Parker were to act as defendant’s agents to consummate the trade with Horton. The evidence, therefore, negatives the claim that the original agreement was superseded by a subsequent one. We must then ascertain what arrangement was then made between plaintiff and Parker. The plaintiff’s testimony is to the effect that he informed Parker of his contract with defendant, by which, if a trade could be effected with Horton, he (plaintiff) would receive $500 as a commission, and that he made an offer to Parker that, if he and Armfield would assist him in bringing about an exchange of the properties, he “would share” the commission with them, and that defendant heard this interview and stated “Yes, boys, the money is ready for you as soon as the matter is closed.” Mr. Parker’s testimony of this transaction is to the same effect. We have thus the claims of the three parties to the transaction ; the defendant testifying that nothing was said or heard by him on the subject of the contract, and the claims of plaintiff and Parker, who assert that plaintiff engaged Armfield & Parker to assist him to negotiate the exchange between defendant and Horton. The transaction thus shown is lacking in all the essential elements requisite to constitute a contract between defendant on the one part and plaintiff and Arm-field & Parker on the other. It fails to show a situation of a common intent of all the parties, and it does not appear that their minds met upon any such terms of agreement as now claimed by the defendant. We find no basis that would have authorized a jury in finding either an express or an implied agreement. Hammon, Contracts, § 12; 9 Cyc. 245. This conclusion disposes of all the exceptions urged upon this appeal. Since the jury found an agreement was made between plaintiff and defendant, as alleged in the complaint, [360] it follows that plaintiff was entitled to recover tlie commission as agreed upon. Leech v. Clemons, 14 Colo. App. 45, 59 Pac. 230; Mullen v. Bower, 26 Ind. App. 253, 59 N. E. 419. By the Oourb. — Judgment affirmed.