Jordan v. Longhenry ( 1909 )

McClain, J.

The contract on which plaintiff sues for a commission was, as he alleges, to sell defendant’s farm, consisting of about seventy acres, at not less than $70 per acre, for which plaintiff was to be paid a commission of $1 per acre, and, in addition thereto, one-half of what he should sell the farm for in excess of $70 per acre. The claim of plaintiff is that he sold the farm for $75 per acre, which would entitle him to a compensation of $245, for which he asks judgment.

.Plaintiff’s own testimony as a witness tends to show that he procured a prospective purchaser, one Paab, with whom, after a protracted négotiation in which the plaintiff took part, the defendant agreed to a contract of sale, in which it was stipulated that $50 of the purchase price should be paid on the execution of the agreement, and the balance in installments for which notes should be given, and that a deed should be made when final payment of the entire sum should be completed. 'Whereupon, as it. appears, plaintiff undertook to draw up the necessary contract and notes, and procure the signatures of Paab. thereto. • When plaintiff returned to defendant two or three days later with these instruments duly signed by Paab, he advised defendant that he had not brought the $50 which Paab was to pay, and that the property of Paab had been attached so that he was unable to make such payment, but that h'e (plaintiff) thought Paab would be able to .make the payment in a short time. Thereupon, as plaintiff testified, -defendant’s husband accepted a note for the cash payment, and the contract was signed by defendant. It does not appear, however, that defendant assented to this arrangement, or that her husband had any authority to bind her by his consent-. With reference to the defendant’s concurrence in this arrangement, plaintiff, who was the sole witness, stated, that, when he- delivered the papers to Mrs. Longkenry, she said that plaintiff bad better hold them until Paab made the $50 payment. We think there was no sufficient evidence to sustain the claim that defendant ever waived the condition that $50 should be paid before the contract went into effect. Plaintiff does not appear to have had any authority to waive this condition, and as he was presenting the contract and notes for defendant’s acceptance, and defendant in fact refused to accept them until the fifty dollars was paid, we think clearly no binding contract of sale was made as between Raab and defendant. Plaintiff’s contract for a commission required him to effect a sale of the farm on terms to be accepted by the defendant. No such sale was made, and the court properly directed a verdict for defendant.

The judgment is therefore affirmed:.