Powell v. Keiser Land Co. , 29 S.D. 94 ( 1912 )

McCOY, P. J.

In this case plaintiff, who resides at Elandreau, S. D., claims -that on about the 22d day of June, 1910, he entered into a contract with defendants, who resided at Highmore, S. D., whereby defendants agreed to pay to plaintiff a commission of $1 per acre on all lands sold by defendants to customers brought or sent to defendants by plaintiff; that in pursuance and by virtue of said contract plaintiff sent one Thomas to defendanants to purchase lands, and that said Thomas purchased from defendants, as a customer of plaintiff, 240 acres of land, and defendants by virtue thereof became indebted to plaintiff in the sum of $240, no part of which has been paid. Defendants answered, admitting the contract with plaintiff, and that defendants sold 240 acres of land to Thomas, but deny that Thomas was sent to defendants as a customer of plaintiff, that said Thomas was an agent of defendants, the same as plaintiff, and that defendants sold said land to Thomas, as their agent, on their own account, and not on account of plaintiff. On the trial, verdict and judgment were in favor of plaintiff. Defendants then moved for new trial, on the grounds, among others, of the insufficiency of the evidence to justify the verdict, which being overruled, defendants excepted, and now urge as error the overruling of said motion.

Defendants allege the insufficiency of the evidence to show that plaintiff brought or sent a purchaser to defendants to purchase lands. It appears from the record that Thomas, whom plaintiff claims he sent to defendants to purchase lands, resides at I'landreau; that plaintiff saw Thomas on the 26th day of June, T909, and had a conversation with him in relation to lands f01sale in Hyde county, at which time plaintiff informed Thomas that he (plaintiff) had a contract with defendants; that Thomas said that he wanted-to go to Highmore, and desired to know where defendants were located; that plaintiff talked to him about the good quality of the land, and Thomas said he would go with plaintiff later on; that plaintiff gave Thomas some of the defendants’ advertising literature; that plaintiff again saw Thomas just before July 16th, and informed him that he (plaintiff) was going to Highmore on July 16th, and Thomas said he could not get. away then. This appears to be all the transaction between plaintiff and Thomas.

Defendant King .testified that he was acquainted with Thomas, and early in the spring of 1909 sent him a list and prices of lands for sale by defendants. A letter from Thomas, addressed to defendants at Highmore, dated June 14, 1909, and a letter from defendants to Thomas, dated June 16, 1909, constitute a contract whereby defendants agreed to pay Thomas $1 per acre on land sold to customers brought or sent to defendants by Thomas, thereby clearly showing that Thomas . was agent of defendants prior to the time plaintiff became such agent, and also prior to the time plaintiff had his said conversation with Thomas. About July 20, 1909, Thomas went to Highmore and purchased 240 acres of land from defendants. A letter of Thomas, placed in evidence by plaintiff, states that he was informed by defendants, at the time he purchased said lands, that the price was made $1 per acre less on account of his acting as agent for defendants. Thomas, in his deposition offered in evidence by plaintiff, testified that at the time he - purchased said land he was asked whether he had been sent there by any one to purchase land, and that he told defendants he had not. Defendant King testified that defendants had never in any manner been informed or notified by plaintiff that plaintiff had sent Thomas .to them to purchase land.

This is substantially the whole of the evidence bearing on the question of the Thomas purchase of said land the connection of plaintiff therewith, and is undisputed. We are of the opinion that the evidence is clearly insufficient to justify the verdict and judgment for plaintiff. The testimony wholly fails to show that plaintiff procured or caused Thomas,to go -to Highmore and purchase said lauds. Defendants’ motion for new trial should have been granted.

The judgment and order appealed from are reversed, and defendants granted a new trial, and the cause remanded.