DocketNumber: Nos. 19,389—(14)
Citation Numbers: 133 Minn. 68
Judges: Bunn
Filed Date: 5/19/1916
Status: Precedential
Modified Date: 9/9/2022
Plaintiff alleged that defendants employed him as a broker in the sale of certain Colorado lands, at an agreed commission of one dollar per acre in the event of sale; that plaintiff earned this commission, amounting to $23,980; that defendants and plaintiff then agreed that the latter should accept the commission thus earned in the capital stock of a corporation to be formed to take over- the property received in the trade brought about by plaintiff, this property being valued at $208,000, plaintiff to receive 23/208 of the stock issued, or 230 shares; it was then alleged that in December, 1912, in “ostensible conformity” to this agreement with plaintiff, defendants caused to be delivered to him these 230 shares; that plaintiff, believing they were issued in accordance with the terms of his agreement, accepted the shares and retained them until July, 1913, when he discovered that defendants had caused the land so taken in the trade to be conveyed to the corporation, but subject to a lien in their own favor aggregating $65,000, represented by a note and mortgage executed by the corporation. Claiming that this was fraud which entitled him to rescind, plaintiff tendered back the stock, notified defendants that he repudiated the transaction, and then brought this action to recover on the original commission agreement. The above statement is sufficient to show the nature of this action, which is clearly
The case was tried to the court without a jury, and the decision was for defendants. Plaintiff moved for amended findings of fact, and for additional findings, and, if these motions were denied, for a new trial. The trial court denied the motions for amended and additional findings and denied a new trial. From this order plaintiff appealed to this court.
The assignments of error need not be separately stated or considered. They challenge the findings of the trial court as not sustained by the evidence, and its refusal to make the amended and additional findings requested.
This case is one of complicated facts and conflicting evidence, but the view we take makes it unnecessary to go into much detail. That defendants owned or controlled the Colorado lands, and that they employed plaintiff to negotiate a sale thereof on terms satisfactory to them, agreeing to pay him one dollar per acre for his services in case of a sale, is all admitted. It is also admitted that plaintiff interested Hurd & Simpson in the lands, and that, in the end, a trade was made by which Hurd & Simpson took the Colorado lands at a stated valuation, and gave to defendants in exchange certain apartment houses in Minneapolis, at a stated valuation. It is also not in dispute that plaintiff, at some time during the negotiations with Hurd & Simpson, entered into an agreement with defendants to take as his commission in case of a trade, stock in the corporation to .which the Minneapolis property was to be conveyed, instead of cash, and that this stock was subsequently
.The controlling question on this appeal is therefore whether the finding of the trial court to the effect that the first proposed trade with Hurd & Simpson was definitely “called off,” that thereafter, in order to help a new deal, plaintiff agreed to take his commission in stock instead of cash, and that the trade actually carried out was made after this agreement, is sustained by the evidence.
A recital of some of the facts is necessary to an understanding of the question to be decided. After the acceptance by defendant Lyons, on July 31,1912, of plaintiff’s written offer to accept one dollar per acre for all lands for which he obtained purchasers whose prices and terms should be approved by defendants, Hurd & Simpson, pursuant to plaintiff’s efforts, discussed with defendants the terms of a proposed trade of the Colorado lands either for certain Atlantic City mortgages, or the two flat buildings in Minneapolis. It is at this point that the facts
It is manifest that it was entirely competent for the parties to make the new agreement as to plaintiff’s commission in case a deal was consummated. And it is entirely clear, under the finding of the trial court which we sustain, that the old agreement was abrogated and out of the way. Even though plaintiff’s rescission of the new agreement was justified, which we do not determine, although it would seem that if there was fraud it was after plaintiff had agreed to take the stock, he has no right to recover on the old agreement. At most he could recover the reasonable value of his services, and the evidence is entirely wanting to show such value. As stated before, we think that plaintiff, under the pleading and proof in this action, cannot recover damages for the loss
The refusal of the trial court to find as to the accuracy, validity or proper amount of this lien was not error in view of the theory upon which plaintiff pleaded and tried his case. Nor do we find any error in refusing to amend or add to the findings as asked by plaintiff.
We have purposely omitted a discussion of the claims of fraud in placing the $65,000 mortgage on the property taken in exchange, and have refrained from stating the complicated facts and evidence which bear upon this question.
Order affirmed.