Huston v. Johnson

151 N.W. 774, 29 N.D. 546, 1915 N.D. LEXIS 30

• Court: North Dakota Supreme Court
• Decided: February 17, 1915
• Status: Published

Opinions

CHRISTIANSON, J.

This is an appeal from a judgment in favor of the plaintiff for a real estate broker’s commission. The case was tried before a jury, and a verdict returned for the plaintiff for $4,000, and from the judgment entered on such verdict, this appeal is taken. There is a square conflict between the plaintiff and defendant upon the principal questions at issue. The plaintiff is a real estate broker living at Carrington, North Dakota. The defendant is a farmer living in Stutsman county, where he owns two tracts of land located only a short distance apart, aggregating 960 acres. The plaintiff in his complaint alleges that the defendant employed him as a broker to sell 480 acres of this land for not less than $14,000, and that the plaintiff was to receive for his commission whatever he might receive over $14,000 therefor. That, thereafter he found certain purchasers who were ready, able, and willing to buy these lands and pay therefor the sum of $18,000. The defendant in his answer asserts that no such agreement was made, but that the plaintiff agreed to sell the entire 960 acres for $26,000. The 480-acre tract which plaintiff claims to have sold was that portion of the tract on which all the buildings were located. There is also a square conflict under the testimony as to when, where, and in what manner and upon what terms the contract of employment between the plaintiff and the defendant was made. Plaintiff testified that the defendant came to his office at Carrington between August 27 and September 1, and at that time stated that he wanted plaintiff to sell some land he had near Edmunds consisting of two parcels, and that plaintiff stated he would have to sell it out in parcels, and that it would be impossible to get one purchaser to buy the whole amount of both tracts; and that the defendant gave a price of $25 per acre if the entire amount of both tracts were sold, or $14,000 for a 480-acre tract on which the buildings were located, and $12,000 for the other tract. Plaintiff further testified that in accordance with this agreement, he procured two purchasers who were willing to buy the 480-acre tract on which the building was located for $18,000, and that he entered into preliminary contracts with them, and that immediately after the deal had been made, he called the defendant on the telephone and notified him of the fact that the land had been sold; that the defendant stated that he was busy and could not get up to Carrington for a couple of days. Plaintiff further claims that a couple days after the telephone conversation he wrote the defendant; that he kept a copy of the letter and mailed the original in the postoffice at Carrington, addressed to Elof Johnson at Edmunds, North Dakota. Without any further foundation a copy of the letter was offered and received in evidence, over objection, that the same was irrelevant, incompetent, and immaterial, and that no foundation for its introduction had been laid. The letter so received in evidence was as follows:

Exhibit “B.”

October 23, 1911.

Mr. Elof Johnson,

Edmunds, N. Dak.

Dear sir:—

I have sold your farm, the west half of 15, and northwest quarter of 22, which you had listed with me. This farm is well sold. The parties who bought it are wealthy Illinois farmers, and can pay out in five years the entire amount due, after making a first payment. Wish you would call at once and we will close the matter up. Have contract for deed with abstract sent to them at once, and first payment will be turned over to you. Will say that I would like part of this first payment to pay my agents with, but I am sure you will do what is right, and I want to talk with you and we can arrange matters satisfactorily at that time. I called you up this morning but was told that you had gone to Jamestown, and I look for you back up here on to-day’s train.

Hoping to see you soon, I remain,

Tours very truly,

‘ The - defendant denied having received the letter of which exhibit “B” purports to be a copy, and the plaintiff admitted that when defendant came to Carrington to see him regarding the proposed land sale, some time subsequent to the sending of the letter, he made no reference thereto, and in no manner acknowledged its receipt. No notice to produce the original was served upon defendant or his counsel, and no other foundation than that above indicated laid for its introduction. An exception was saved to the court’s ruling in admitting exhibit “B,” and its reception is one of the errors presented on this appeal. Defendant, on the other hand, contends that the agreement under which plaintiff acted in obtaining the purchasers for the land was entirely different, and made in an entirely different manner, and upon entirely different terms than those asserted by the plaintiff. In the first place, defendant claims that he had no talk with the plaintiff personally, but that some time in the first part of September, 1911, while in Carrington, he went to the plaintiff’s office, and, upon inquiry from the stenographer whether the same was a land office or not, was informed that it was, and that the stenographer thereupon called some man from the back part of the office, and that this defendant then gave to such man, in plaintiff’s office, the description of the land and the prices and terms at which the defendant was willing to sell the same. The defendant also claims that at that time he stated that the entire two tracts of 960 acres must be sold at $26,000, and that the defendant was not willing to sell any part unless he sold the whole thereof. Defendant claims that this was the only time he ever extended any authority to plaintiff to sell the land, or ever gave any terms upon which he would make sale, and that therefore if plaintiff made sale at all, that he was bound by and must act under the arrangement so made at that time. Defendant further claims that some time subsequent thereto the plaintiff came to the defendant’s farm, and at this time the plaintiff stated that he was going to find a purchaser for the land, but no terms of sale were discussed, and that subsequent thereto defendant received a telephone message from the plaintiff, and that defendant thereupon went to Carrington and had some talk with the plaintiff in the bank regarding the proposed sale, but that during'none of these talks did the defendant in any manner agree to any deviation from the terms of sale proposed by him to the man in the plaintiff’s office. The trial court sustained objections to the testimony of the defendant with reference to the conversation the defendant claimed to have had with the man in plaintiff’s office, on the apparent theory that it was incumbent upon the defendant to prove that the person with whom he talked had authority to represent the plaintiff. The defendant’s counsel, therefore, made an offer of proof as follows: “At this time the defendant offers to show that on or about the 1st of September, 1911, he went to the plaintiff’s office, in Carrington, North Dakota, and at that time met tbe stenographer or lady clerk in Mr. Huston’s office, wbo called from tbe private office some man wbo represented to Mr. Johnson that be was tbe agent of Mr. Huston, and that Mr. Johnson at that time gave him a description of bis lands, tbedands mentioned in tbe complaint and tbe three quarters additional mentioned by tbe witness on tbe stand, and at that time told him that tbe whole land was for sale at .$26,000 net to tbe defendant, with one half cash and tbe balancé on time at 6 per cent interest per annum; that in case tbe same was sold, that tbe plaintiff should receive from tbe purchasers such sum over and above that amount as be might sell these sis quarter sections of land for. At this time we will offer to show, by tbe defendant on tbe witness stand, that at this time, tbe man at Mr. Huston’s office with whom Mr. Johnson talked, told Mr. Johnson that tbe sis quarter sections would be a very large lot of land to sell at one sale, and asked if it could not be sold in separate parcels; that Mr. Johnson at that time informed this man at Mr. Huston’s office that be would, in no event, sell tbe land that bad tbe buildings on, unless it was all sold, and that tbe land must net him $26,000, or tbe three quarters with tbe buildings, $25 per acre, and tbe balance $14,000.” In addition to tbe offer, proper questions were asked by tbe defendant’s counsel for tbe purpose of eliciting this testimony, but such testimony was all excluded, and before tbe close of tbe case all references to tbe conversation, even that elicited on cross-examination, was, upon motion of plaintiff’s attorney, stricken out and eliminated from tbe jury’s consideration. Exceptions were taken to tbe several rulings of tbe court in excluding tbis testimony, and sucb rulings are presented as error on tbis appeal.

Did tbe trial court err in admitting exhibit “B” in evidence, and if so was tbe error prejudicial to tbe rights of tbe defendant? Tbis letter was not offered as a part of a general correspondence. There is no evidence that defendant in any manner acknowledged its receipt, or acted or agreed to act thereon. Tbe undisputed testimony is to tbe contrary. It will be observed that tbe letter contains several statements favorable to tbe plaintiff. It is not in tbe nature of a mere notice or demand, but particularly describes tbe 480-acre tract by legal numbers, and states as a fact that tbis tract bad been listed with him. Tbe letter further commends tbe sale, and states that tbe purchasers are wealthy Illinois farmers. Tbe letter does not-call for an answer, but is a self-serving declaration on tbe part of tbe plaintiff, presenting "tbe transaction in as favorable light to bim as possible. In Fearing v. Kimball, 4 Allen, 125, 81 Am. Dec. 690, it was said: “Tbe general rule tbat a party cannot make evidence for bimself by bis written communications addressed to tbe other party, as to tbe character of dealings between them, or tbe liability of tbe party to whom they are addressed, in tbe absence of any reply assenting to tbe same, is well settled, . . . a party cannot make evidence for bimself by bis own declarations.” And in Jones on Evidence, vol. 3, § 583, p. 767, it is said: “It is almost unnecessary to say tbat tbe sender may not use bis own letters against tbe sendee without proof of the receipt of them, or tbat tbe sendee in some manner acted or agreed to act upon them; otherwise it would amount to tbe party making evidence for bimself.” We are clearly satisfied tbat the reception of this letter in evidence was error. Seevers v. Cleveland Coal Co. 158 Iowa, 574, 138 N. W. 793; Hockaday v. Wortham, 22 Tex. Civ. App. 419, 54 S. W. 1094; Largent v. Beard, — Tex. Civ. App. —, 53 S. W. 90; Riddell v. Jenkins, 109 App. Div. 463, 95 N. Y. Supp. 702; Havens v. Gilmour, 83 App. Div. 84, 82 N. Y. Supp. 511; Duysters v. Crawford, 69 N. J. L. 614, 55 Atl. 823; United States Exp. Co. v. Long, 105 Ark. 130, 150 S. W. 576; Hutchinson v. Nay, 183 Mass. 355, 67 N. E. 601; Gearty v. New York, 183 N. Y. 233, 76 N. E. 12; Smith v. Shoemaker, 17 Wall. 630, 21 L. ed. 717; 16 Cyc. 1202; Mulroy v. Jacobson, 24 N. D. 354, 139 N. W. 697.

Respondent contends, however, tbat even though it was error to admit exhibit “B,” tbat such error was not prejudicial. We are unable to sustain this contention. In this case tbe material facts depended almost entirely upon tbe testimony of tbe plaintiff and defendant, and it is obvious tbat any fact or circumstance which might or would be likely to cause tbe jury to give greater credence to tbe testimony of one of these parties could not be brushed aside with tbe mere assertion tbat it was immaterial, and tbat there is sufficient competent testimony to sustain tbe verdict. Tbe letter must have been offered for some purpose. We cannot be expected to presume tbat it was offered as a mere idle ceremony. Plaintiff must have expected tbat it would aid bis cause, and tbat its contents would weigh with tbe jury in considering tbe testimony in tbe case. Tbe statements in tbe letter were favorable to tbe plaintiff. These statements were self-serving declarations. Tbe letter was clearly incompetent, and should have been excluded. Nor would we be justified in saying that this letter bad no effect upon tbe minds of tbe jury. In considering a similar proposition, tbe court of appeals of tbe State of New York in tbe case of Gearty v. New York, 183 N. Y. 233, 238, 76 N. E. 12, 14, says: “Nor can we properly say that tbe evidence was harmless. Tbe trial was before a jury, and these statements . . . may have bad considerable weight with tbe jury. Tbe burden is on tbe respondent to show that tbe reception of tbe letter was harmless, and this be has failed to do. Foote v. Beecher, 78 N. Y. 155; Jefferson v. New York Elev. R. Co. 132 N. Y. 483, 30 N. E. 981; People v. Strait, 154 N. Y. 165, 171, 47 N. E. 1090.” In tbe case of Smith v. Shoemaker, 17 Wall. 630, 21 L. ed. 717, tbe Supreme Court of tbe United States considered tbe same question. In that case, also, certain letters were received in evidence over objection, and on appeal it was contended that tbe admission of such letters was error without prejudice. In disposing of this contention that court said: “We repeat tbe doctrine of this court laid down in Deery v. Cray, 5 Wall. 795, 18 L. ed. 653, that while it is a sound principle that no judgment should be reversed on error when tbe error complained of worked no injury to tbe party against whom tbe ruling was made, it must appear so clear as to be beyond doubt that tbe error did not and could not have prejudiced tbe right of tbe party. Tbe case must be such that this court is not called on to decide upon tbe preponderance of evidence that tbe verdict was right, notwithstanding tbe error complained of.” 17 Wall. 630, 639, 21 L. ed. 717, 719. We are satisfied that tbe admission in evidence of exhibit “B” was error, prejudicial to tbe rights of tbe defendant.

We are also satisfied that tbe trial court erred in excluding tbe evidence offered by tbe defendant relative to what took place at tbe time be made arrangements for tbe sale of bis lands at tbe plaintiff’s office. Tbe ruling of tbe trial court in excluding this evidence was based upon tbe theory that it was incumbent upon tbe defendant to show that tbe person with whom be bad bis negotiations at plaintiff’s office actually represented tbe plaintiff. This is clearly erroneous, for tbe reason that tbe defendant claims that this is tbe only arrangement be ever made with plaintiff to sell bis lands. And from defendant’s standpoint, therefore, if plaintiff bad any authority whatsoever to sell the lands of defendant, it must have been under and by virtue of the terms mentioned in the conversation between defendant and the man in charge of plaintiff’s office. Because defendant contends that he never saw plaintiff or anyone else representing plaintiff in regard to the sale of these lands until after plaintiff notified him that he had procured purchasers. Therefore, from defendant’s standpoint, it is obvious that if plaintiff had any arrangement with defendant whatsoever authorizing him to procure such purchasers, it must have "been the one plaintiff asserts that he made with the man in charge of plaintiff’s office. And therefore, if defendant’s version is correct, it is obvious that the person in charge of plaintiff’s office must either have been authorized to represent plaintiff, or the plaintiff by acting under such arrangement ratified his acts. It is true that plaintiff claims that defendant came to his office at Carrington and made an entirely different arrangement with plaintiff personally, but this fact would not preclude the defendant from presenting his side of the controversy, and it would then be for the jury to say who was right or who was wrong in his contention in the matter. The mere fact that defendant’s version was denied by plaintiff in no manner affected its admissibility, or changed the rules of evidence relating thereto. By the court’s ruling, defendant was prevented from presenting to the jury his side of the controversy relating to the terms and conditions of the contract of employment.

Respondent, however, contends that the court properly excluded the testimony relative to the arrangement made with the man in charge of plaintiff’s office by the defendant, for the reason that the defendant’s answer does not plead the fact that he made such agreement with an agent of the plaintiff, but merely pleads in general terms that such agreement was made between plaintiff and defendant. This contention is of no merit. It was not-necessary for the defendant to plead agency. Such evidence was admissible under the allegations of the answer, denying the contract set out in the complaint, and alleging a different contract between plaintiff and defendant. Weide v. Porter, 22 Minn. 429; Sherman v. New York C. R. Co. 22 Barb. 239; Cannon v. Bannon, 151 App. Div. 693, 136 N. Y. Supp. 139; Bibb v. Bancroft, 3 Cal. Unrep. 151, 22 Pac. 484; Poole v. Hintrager, 60 Iowa, 180, 14 N. W. 223; Acme Harvester Co. v. Curlee, 77 Neb. 666, 110 N. W. 660; Child v. Gillis Constr. Co. 42 Utah, 120, 129 Pac. 356. Tbe errors in tbe admission and rejection of evidence deprived tbe defendant of a fair trial. Tbe judgment is reversed and a new trial ordered.