Haskell v. Beeghley

The opinion of the court was delivered by

Graves, J.:

The question of fact involved in this case is whether or not the plaintiffs found a purchaser for the defendant’s farm who was ready, able and willing to buy the place for the price and upon the terms and conditions given by the defendant to her agents. The letters hereinbefore given constitute the contract between the parties. From these it clearly appears that the lowest price for which the defendant agreed to sell the place was $11,800, or $11,200 net to her; $6200 to be cash, balance due in five years at 6 per cent, interest, to be secured by mortgage on the place. This offer did not include the crop or any part of it, and did not include any expense to her for commission, attorney’s fees, abstract or preparation of papers. Nothing was stated concerning insurance. The plaintiffs made a written contract with one J. F. Syster, in which he agreed to pay $500 cash, $7800 March 1, 1906, and secure the remainder, $3500, by a mortgage on the farm due five years after date, with interest at 6 per cent, per annum, payable semiannually, with privilege to pay all or any part at any interest payment. The defendant was obligated to furnish all necessary papers, deed and abstract, assign her insurance policies, and to surrender one-third of the growing crops. It seems clear that this falls far short of being a purchaser who is ready, able and willing to purchase upon the terms fixed by her.

In argument counsel practically concedes that such a purchaser was not produced, but insists that the contract made by the plaintiffs with the .purchaser, although different from the one they were authorized to make, was consented to and ratified by the defendant, and she thereby became liable for a commission. In support of this argument reference is made to her letter of January 16, 1906, in which occur the words: “I congratulate you upon making sale.” This fragment of a sentence is said to be sufficient to show that defendant accepted the unauthorized conditions of the contract inserted by the plaintiffs, and that then and there the contract of sale was closed to her satisfaction. This conclusion ignores the other language used in the same letter; it disregards the letter written by her at the same time to Mr. Southworth, and other material features of the transaction. It will be seen that in the same letter, immediately following the words quoted, it is stated that she has referred the matter to Mr. Southworth, who will représent her in the matter. It further appears that she at the same time transmitted the contract to Southworth, with a lettér directing him not to deliver the contract until certain matters mentioned by her were satisfactorily adjusted. The difference between this contract and the one authorized by her is so material and important that her consent thereto should not be found to exist until established by some tangible evidence.

The idea of consent on her part is sought to be strengthened by a letter which she wrote to her tenant on February 22,1906. The force of this letter is broken somewhat by the circumstances • under which it was written. The sale is claimed to have been made January 8. The contract was received by the defendant, and by her sent to Southworth, January 16. On January 22, and again on January 27, the plaintiffs wrote to the defendant urging her to write to Coffenberger, her tenant, for the purpose of inducing him to release his lease. On February 22 she wrote this letter. In it, however, while speaking as though a sale had taken place, she uses this language: “I am assuming that the sale is made and that the deal will go through, but as yet no money has been paid nor papers passed, and one is not sure of anything nowadays until the cash is in one’s hand.”

If a sale had been made on January 8 satisfactory to defendant, why this effort more than a month afterward to have the defendant endeavor to induce her tenant to release his lease? It is quite evident that the plaintiffs did not regard their commission as earned until after the sale had entirely failed. It is equally clear that the defendant did not consent to the contract made with the alleged purchaser. On the contrary the evidence, when considered as a whole, clearly and conclusively shows that she refused to consent thereto. Great latitude is given to juries in the determination of questions of fact, and a verdict will not be disturbed when- there appears to be any evidence upon which it can rest. This rule, however, can not be extended so as to permit important rights to be disposed of upon the assumption that there is some evidence to justify it, where the only proof consists of fragmentary sentences taken from the body of a written instrument and disassociated from the other language of the instrument, when the language so taken is thereby rendered susceptible of a meaning materially different from that which it would have if left in its place and considered with the instrument and transaction as a whole. The language “I congratulate you upon making sale,” taken from the body of the letter of January 16, 1906, and a similar expression in defendant’s letter' written to her tenant February 22, 1906, constitute the sole evidence upon which plaintiffs rely to establish the assent of the defendant to their unauthorized contract. We do not think such disconnected expressions can be considered as any evidence upon which to rest a verdict. The demurrer to the evidence should have been sustained.

The judgment of the district court is reversed, with directions to grant a new trial and proceed in accordance with the views herein expressed.