Murphy v. Collins , 155 Minn. 290 ( 1923 )

Brown, C. J.

Action to recover a commission alleged to have been earned by plaintiffs in procuring a purchaser for real property held for sale by defendants. Plaintiffs bad a Arerdict and defendants appealed from an order denying their motion for judgment or a new trial.

It appears without dispute that plaintiffs were authorized by defendants to procure a purchaser of the property under an agreement for compensation should they succeed. The evidence justified the jury in finding that subsequent to the agreement plaintiffs advertised the property for sale. The advertisement reached a prospective purchaser who applied to them for terms and location of property. Plaintiffs at once advised defendants of the fact, giving the name of the person who so inquired in response to the advertisement. The property was subsequently sold by defendants to that party, and the transaction of sale fully completed. It also appears that defendants had authorized another real estate broker to procure a purchaser of the property; the authority running concurrently with that given to plaintiffs. The other agent had some negotiations with the prospective purchaser discovered by plaintiff with reference to a sale and we assume that he also made claim to a commission. On the theory that they were the procuring cause of the sale plaintiffs, compensation being refused them by defendants, brought this action to recover the same.

The principal contention in support of the appeal is that there was prejudicial error in the instructions of the court to the jury. To this we have given careful attention, with the result that no reversible error is found. The court clearly told the jury that plaintiffs could not recover, unless they established by a preponderance of the evidence that they were the procuring cause of the sale of the property/and that if they failed on that issue a verdict should be returned for defendants. There may have been some verbal errors in the charge, but no exceptions were taken at the trial, and they are not now available. Steinbauer v. Strong, 85 Minn. 274, 88 N. W. 754.

Tbe exception noted in tbe motion for a new trial does not conform to tbe rules controlling tbe practice and presents no basis for a reversal. Tbe exception as stated in tbe motion tbat tbe “court erred in charging tbe jury as follows,” then follow six distinct paragraphs of tbe charge, embracing as many separate items of law and fact, is entirely too general. Rheiner v. Stillwater St. Ry. & T. Co. 31 Minn. 193, 17 N. W. 279 ; 2 Notes on Minn. Reports 487; Main v. Oein, 47 Minn. 89, 49 N. W. 523. Such a general exception may not be divided into distinct and separate points o'f alleged error by tbe assignments of error in this court. Tbe exceptions must be full and complete as taken and noted in tbe trial court and cannot be enlarged on appeal. American Engine Co. v. Crowley, 105 Minn. 233, 117 N. W. 428. There was no error in tbe failure of tbe court to instruct tbe jury in reference to possible claims of the other real estate broker. No request therefor was made. Robertson v. Burton, 88 Minn. 151, 92 N. W. 538, cited in support of tbe point, as limited in Ellington v. Great Northern Ry. Co. 92 Minn. 470, 100 N. W. 218, is inapplicable. Bailey v. Grand Forks Lumber Co. 107 Minn. 192, 119 N. W. 786. It is not at all difficult for tbe owner of real property to expose himself to liability to two or more real estate brokers with whom be lists it for sale. Alton & Peters v. Merritt, 145 Minn. 426, 177 N. W. 770; Alton v. Merritt, 150 Minn. 119, 184 N. W. 610. And, when they earn a commission by services rendered within tbe agency, tbe owner is liable therefor.

Tbe contention tbat tbe verdict finding tbat plaintiffs were tbe procuring cause of the sale is not supported by tbe evidence is not sustained. Our examination leads to tbe conclusion tbat tbe evidence made tbe question one of fact. Tbe trial court having approved tbe verdict, there tbe matter must end.

Order affirmed.