Carlson v. Chase

The appeal in this case was taken five years ago. The delay in its prosecution is not accounted for in the record. The action was brought to recover commission earned in the sale of real estate. In the complaint two causes of action were alleged. On the trial it was held that the allegations were insufficient to support the second cause of action and it was dismissed. The only issues involved in the judgment arise out of the first cause. The complaint alleges a contract between the plaintiff and George J. Smith, since deceased, whereby the plaintiff, if he could find a purchaser to a certain described tract of land on stated terms, should have as his commission all in excess of a certain sum; that thereafter the plaintiff found a purchaser with whom the defendant contracted to sell the land at a price which would result in the defendant receiving $240 more than the net price reserved. It is then alleged that the purchaser was ready, willing, and able to purchase the land and to carry out the contract but that the defendant refused and also refused to pay the commission earned by the plaintiff. To this complaint the defendant interposed a general denial. Upon the trial the complaint was amended to allege the death of the defendant, the issuance of letters of administration and the due presentation to the administratrix of proof of the claim. It does not appear that any answer was filed to the amended complaint. At the conclusion of the evidence for the plaintiff, the defendant moved for a directed verdict. The motion was denied and the defendant rested. Thereupon the plaintiff moved for a directed verdict and the motion was granted.

The record discloses that the plaintiff's evidence proves the allegations of the complaint except the allegation of the presentation of the claim to the administratrix. While there is no merit in the appellant's contention that the evidence does not show that the commission was earned, and while it may be true, as asserted by the respondent's counsel, that, as a matter of fact, the claim was duly presented, this court cannot avoid reversing the judgment. We must be guided solely by the record and we must necessarily give effect to mandatory statutes. Section 8744 of the Compiled Laws for 1913 specifically says that no recovery shall be had in an action against an administrator "unless proof be made of the presentation required." No such proof was made. The allegation in the complaint does not amount to proof and the fact that after answering the original complaint by general denial no separate answer was interposed to the amended complaint, does not alter the situation. It is the duty of the court to see that this statute is complied with before entering judgment. Mann v. Redmon, 23 N.D. 508, 137 N.W. 478.

The judgment must, therefore, be reversed. It is so ordered.

BIRDZELL, Ch. J., and NUESSLE, CHRISTIANSON, BURKE and BURR, JJ., concur.