Park v. Hogle , 124 Iowa 98 ( 1904 )

Bishop, J.

Plaintiff is a real estate agent doing bnsiness at Waterloo. Defendants were the owners jointly of a tract of land consisting of forty-six and eighty-four hundredths acres lying along the Cedar river and near the limits of that city. In February, 1898, the defendant Jessie L. Ilogle, who resides in Oakland, Cal., acting for herself and her co-owners, wrote plaintiff requesting him to try and sell said tract of land at the cash price of 'fifty-four dollárs per acre and offering to pay a commission of 5 per cent. Plaintiff responded by a letter accepting' the agency, and inquiring among other things whether defendants had an abstract of title or proposed to furnish one. Mrs. Hogle replied, saying simply, “ I see no necessity for sending an, abstract until the sale is made.” In May, 1898, plaintiff wrote to Mrs. Hogle saying, in substance, that the land was sold upon certain conditions respecting the title and an abstract thereof; also as to shrinkage in the acreage caused by the washing of the river. To this Mrs. Hogle at once replied insisting upon there being forty-six and eighty-four hundredths acres of land and refusing to allow for any shrinkage. She says further that if the customer desired to purchase “ have the First National Bank of Waterloo notify me when he' has deposited the amount in full for us and I will send the survey and deed, also pay your five per cent commission.” The proposed customer, E. B. Smith, refused to make the purchase at the time, and nothing further' occurred until April, 1899, when plaintiff again met Smith and the latter agreed to take the land at the price' designated, an abstract of title to be furnished. Thereupon plaintiff wrote Mrs. Hogle that the land was sold, and requested that the abstract be sent at once. With this letter he inclosed a printed form of deed, the blanks left unfilled save that a description of the lands by metes and bounds, typewritten upon a separate slip, was pasted on the blank at the place'where the description was intended to be inserted. Further in the letter plaintiff explains that this was done by him to make certain that the description — which is somewhat lengthy and involved — shall correspond with a survey which he had procured to be-made. He also requested that the blanks be filled and the deed executed by all the co-owners, and that it then be returned to him, or sent to the bank to be delivered on receipt of the purchase price, less commission and cost of abstract. Mrs. Hogle responded from Salt Lake City, sending on an incomplete abstract, and saying that she had sent the deed to her co-owners to be executed, and would forward the same as soon as returned. It seems that upon her receipt of the deed she came on to Waterloo, bringing it with her. • Upon her arrival she at once presented herself to the plaintiff and was told by him to take the deed to' the attorney of Smith who was to pass upon it and check it up with the abstract, which plaintiff in. the meantime had procured to be extended to date. The attorney, upon examining the deed, and after a consultation with his client, refused to approve- of -it for the sole reason that, the description of the land was'upon a typewritten slip and.pasted on the deed, instead of being written in the blank, space appropriate thereto. At the time of-such .examination Mrs. ■ Hogle had not yet signed the deed, but, thinking that a sale had been made, she offered to do- so at once, and no objection seems to have heen made on- that account.- The record leaves Mrs. Hogle in the office of the attorney for Smith. Plaintiff does not - reappear until the commencement of this action.

The facts as contained in the foregoing statement are established by the record without substantial conflict, and therefrom the rights of the parties must be determined. First, as to the matters alleged in the first count of the petition. Without doubt, we must look to-the correspondence for the authority of plaintiff to act in the premises. The subject may be summed up by saying that the letter written in February, 1898, authorized him. to find a cash purchaser at fifty-four dollars per acre. The letter of May, 1898, made the further condition that the purchase price in full should he deposited in the First National Bank when a deed would be sent on and the commission paid. These two letters Constituted plaintiffs sole authority, and he must be presumed to have undertaken his employment thereunder. Now, it is apparent to us that in what followed there was not a compliance therewith. He did not present to defendants a customer, backed up by a deposit in the bank — that being the condition made by Mrs. Hogle, and to be complied with before she would send on a deed. He did not present to defendants a customer at all. He wrote Mrs. Hogle that he had a customer, and when she came to Waterloo for the purpose of making the transfer he simply bade her go to an attorney, who rejected the deed solely because of the method adopted by plaintiff in preparing the same. As far as disclosed by the record, the defendants and the proposed purchaser, Smith, have never met; and plaintiff and Mrs. Hogle did not meet again until they came together upon the trial of this action. That he may have recovery of his commission, a real estate agent must show that he has produced a customer able, ready, and willing to purchase upon the terms and conditions prescribed by his employer. Corbel v. Beard, 92 Iowa, 360; Dent v. Powell, 93 Iowa, 711. The testimony of plaintiff falls far short of proving that this was done by him. ' It follows that the court did not err in directing a verdict as to the first count of the petition for defendants.

The verdict for defendants was properly directed as to the matter alleged in the second count of the petition, and this for the reason that it cannot he said from the record that plaintiff was ever given authority to contract on behalf of defendants the indebtedness incurred by him, the amount of which he now seeks to recover.

Our conclusion, drawn from the whole record, is that the judgment of the trial court was right, and it is affirmed.