POLLRY, J.
Plaintiff brought this action to recover a commission on a certain land deal, of which he claims to have been the procuring cause. In his complaint, he alleges that, on or about ■the 1st day of June, 1910, the defendant listed: with plaintiff, as a middleman, a certain store building, with fixtures, and a stock of merchandise, situated in the city of Vermillion, for the purpose of trading the same for land; and that defendant agreed that, in [511]*511case plaintiff should find a purchaser with whom defendant could effect a trade for land upon satisfactory terms, he would pay plaintiff for his services, as such middleman, a commission equal in amount to two per cent, of the trading price of said store building and stock of merchandise; that defendant fixed the price on the store building and lot occupied thereby at $10,000; and that the stock of merchandise was to go in at invoice price. He further alleges that he was the cause of bringing' defendant in contact with the H. ‘C. Webber Latid Company for the purpose of making such trade, and that defendant traded his said store and stock of merchandise to said company at a price and upon terms satisfactory to himself. To this complaint defendant interposed a general denial, but, during the trial, amended his answer by alleging • that that plaintiff was not the agent of defendant, but acted as the agent of the said H. C. Webber Land Company in negotiating the said trade; that he had charged and received a commission from said land company and, for that reason, was not entitled to a commission from plaintiff. Plaintiff had judgment, and, from said judgment and an order denying a new trial, defendant appeals.
Defendant contends: First, that he never employed plaintiff to act for him in disposing of his said store building and stock of merchandise; second, that plaintiff acted as the agent of the said H. C. AVebber Dane! Company in making said trade; third, that the trial court erred to his prejudice in the admission and rejection of testimony and in its instructions to the jury; and, fourth, that the evidence is insufficient to- support the verdict.
[1,2] Upon the question of employment, plaintiff testified as follows:
“The conversation was like this: If I could find a man that he could deal with — I told -him I ¡had land for exchange, and- I told -him I would write. In that -conversation he put a value of $10,000 on the building. The stock was to go at invoice price. He asked me what I would charge. I told him 2 per cent. He said that was all right. That is all there was to it. I wrote a land man; Skinner. I told Mr. Anderson that. I told him Skinner had the land at Wessington Springs or up in that country, and we set the day to go, the 4th of July.”
This testimony was competent and sufficient, if believed by [512]*512the jury, to establish the employment, and, upon this question, the •court charged the jury as follows:
“Mr. Anderson denies that he ever made any such an agreement as this claimed with Mr. Jordan, so the first and important question in the case is: Did Mr. Anderson so agree ? If you. find that he did! not, that, of course, would end the case and your verdict should be in favor of Mr. Anderson.”'
This submitted the question squarely to the jury, and, -the verdict having been for plaintiff, settled the question of employment in his favor.
[3] To show a performance of the above agreement, plaintiff testified that, on the 4th day of July, he and defendant started from Vermillion, going first ito Mitchell and from there to the town of Farmer, where they were met by the said Skinner; that they stayed all night with Skinner, and, next morning, he took them out through the country and showed them a number of pieces of land. Defendant saw nothing that suited him there, and, in the afternoon, Skinner took them, to Wessington Springs, where ■he introduced them to Mr. AYebber, of the H. C. Webber Land Company, and for which company Skinner was acting as agent. On the following morning, an employe of the said land company took them, out in an automobile and showed defendant a number of tracts of land that were for sale by that company, and, on their return to Wessington Springs, defendant made a deal with Mr. Webber whereby he traded said property in Vermillion for one of said tracts of land. In corroboration of this testimony, plaintiff called a witness, who testified that he ‘had a -conversation with defendant, about the month of July, 1910, in which defendant told the witness that he -had traded his store for land; that a land man in Vermillion had engineered the deal for him; and that he had agreed to -pay him- two per cent. But he -did not say who the land man was, no-r mention plaintiff’s name. Defendant now complains of this • testimony on the ground that it is indefinite and does not connect plaintiff with the said trade. This testimony is indefinite and, except inferentially, does not connect plaintiff with the transaction in any way; but it appears to have gone in without objection and was allowed to- -stand without a motion to strike it out, and surely it cannot be questioned for the first time in this court. Defendant' admitted the entire transaction just as testified to by [513]*513plaintiff, except that he denied that plaintiff was working .for him, and testified that plaintiff asked him to go along for company, and that he (defendant) went along for a pleasure trip. This issue was submitted to the jury upon the following instruction:
“Was Mr. Jordan the one who furnished! or procured for Mr. Anderson, the purchaser, the Webber Land ‘Company, that after-' ward purchased or traded for Mr. Anderson’s store and stock of goods here? Lor a real estate agent, or middleman, as the plaintiff in this case has termed himself, to have procured the purchaser, or the one with whom the trade or exchange was made, he must have been the original discoverer or finder of the person for Mr. Anderson, and with whom he negotiated and to whom he after-v and sold- or traded his store and stock of goods. If Mr. Jordan ■ ■was not such original finder or discoverer of that purchaser, the land company, he would not be the .procurer of a purchaser within the meaning of the law or the allegations of his complaint in this case upon which he seeks to recover from Mr. Anderson. In short, Mr. Jordan must have been the one that was originally instrumental in bringing the panties together so. that that trade or exchange was effected.”
[4] During the trial, defendant undertook to narrate the conversation that took place between him and' plaintiff relative tO' the alleged contract of employment. Among other things, he testified:
“I said that if I found anything that suited me, of course, I would trade, but 'not for him to go out for me.”
Plaintiff moved that 'the “last part of the answer be stricken out.” The motion was granted, and defendant excepts. Just what part, or how much, of the answer this motion was intended to reach, or upon what theory it was granted, does not appear from the record before us. The question that elicited the answer is not preserved in the printed record. Defendant contends that the answer was directly responsive, and it appears to be material to' the issue that was being tried. But we are unable to see how defendant was prejudiced by having the last .part of the answer stricken out.
Free access — add to your briefcase to read the full text and ask questions with AI
POLLRY, J.
Plaintiff brought this action to recover a commission on a certain land deal, of which he claims to have been the procuring cause. In his complaint, he alleges that, on or about ■the 1st day of June, 1910, the defendant listed: with plaintiff, as a middleman, a certain store building, with fixtures, and a stock of merchandise, situated in the city of Vermillion, for the purpose of trading the same for land; and that defendant agreed that, in [511]*511case plaintiff should find a purchaser with whom defendant could effect a trade for land upon satisfactory terms, he would pay plaintiff for his services, as such middleman, a commission equal in amount to two per cent, of the trading price of said store building and stock of merchandise; that defendant fixed the price on the store building and lot occupied thereby at $10,000; and that the stock of merchandise was to go in at invoice price. He further alleges that he was the cause of bringing' defendant in contact with the H. ‘C. Webber Latid Company for the purpose of making such trade, and that defendant traded his said store and stock of merchandise to said company at a price and upon terms satisfactory to himself. To this complaint defendant interposed a general denial, but, during the trial, amended his answer by alleging • that that plaintiff was not the agent of defendant, but acted as the agent of the said H. C. Webber Land Company in negotiating the said trade; that he had charged and received a commission from said land company and, for that reason, was not entitled to a commission from plaintiff. Plaintiff had judgment, and, from said judgment and an order denying a new trial, defendant appeals.
Defendant contends: First, that he never employed plaintiff to act for him in disposing of his said store building and stock of merchandise; second, that plaintiff acted as the agent of the said H. C. AVebber Dane! Company in making said trade; third, that the trial court erred to his prejudice in the admission and rejection of testimony and in its instructions to the jury; and, fourth, that the evidence is insufficient to- support the verdict.
[1,2] Upon the question of employment, plaintiff testified as follows:
“The conversation was like this: If I could find a man that he could deal with — I told -him I ¡had land for exchange, and- I told -him I would write. In that -conversation he put a value of $10,000 on the building. The stock was to go at invoice price. He asked me what I would charge. I told him 2 per cent. He said that was all right. That is all there was to it. I wrote a land man; Skinner. I told Mr. Anderson that. I told him Skinner had the land at Wessington Springs or up in that country, and we set the day to go, the 4th of July.”
This testimony was competent and sufficient, if believed by [512]*512the jury, to establish the employment, and, upon this question, the •court charged the jury as follows:
“Mr. Anderson denies that he ever made any such an agreement as this claimed with Mr. Jordan, so the first and important question in the case is: Did Mr. Anderson so agree ? If you. find that he did! not, that, of course, would end the case and your verdict should be in favor of Mr. Anderson.”'
This submitted the question squarely to the jury, and, -the verdict having been for plaintiff, settled the question of employment in his favor.
[3] To show a performance of the above agreement, plaintiff testified that, on the 4th day of July, he and defendant started from Vermillion, going first ito Mitchell and from there to the town of Farmer, where they were met by the said Skinner; that they stayed all night with Skinner, and, next morning, he took them out through the country and showed them a number of pieces of land. Defendant saw nothing that suited him there, and, in the afternoon, Skinner took them, to Wessington Springs, where ■he introduced them to Mr. AYebber, of the H. C. Webber Land Company, and for which company Skinner was acting as agent. On the following morning, an employe of the said land company took them, out in an automobile and showed defendant a number of tracts of land that were for sale by that company, and, on their return to Wessington Springs, defendant made a deal with Mr. Webber whereby he traded said property in Vermillion for one of said tracts of land. In corroboration of this testimony, plaintiff called a witness, who testified that he ‘had a -conversation with defendant, about the month of July, 1910, in which defendant told the witness that he -had traded his store for land; that a land man in Vermillion had engineered the deal for him; and that he had agreed to -pay him- two per cent. But he -did not say who the land man was, no-r mention plaintiff’s name. Defendant now complains of this • testimony on the ground that it is indefinite and does not connect plaintiff with the said trade. This testimony is indefinite and, except inferentially, does not connect plaintiff with the transaction in any way; but it appears to have gone in without objection and was allowed to- -stand without a motion to strike it out, and surely it cannot be questioned for the first time in this court. Defendant' admitted the entire transaction just as testified to by [513]*513plaintiff, except that he denied that plaintiff was working .for him, and testified that plaintiff asked him to go along for company, and that he (defendant) went along for a pleasure trip. This issue was submitted to the jury upon the following instruction:
“Was Mr. Jordan the one who furnished! or procured for Mr. Anderson, the purchaser, the Webber Land ‘Company, that after-' ward purchased or traded for Mr. Anderson’s store and stock of goods here? Lor a real estate agent, or middleman, as the plaintiff in this case has termed himself, to have procured the purchaser, or the one with whom the trade or exchange was made, he must have been the original discoverer or finder of the person for Mr. Anderson, and with whom he negotiated and to whom he after-v and sold- or traded his store and stock of goods. If Mr. Jordan ■ ■was not such original finder or discoverer of that purchaser, the land company, he would not be the .procurer of a purchaser within the meaning of the law or the allegations of his complaint in this case upon which he seeks to recover from Mr. Anderson. In short, Mr. Jordan must have been the one that was originally instrumental in bringing the panties together so. that that trade or exchange was effected.”
[4] During the trial, defendant undertook to narrate the conversation that took place between him and' plaintiff relative tO' the alleged contract of employment. Among other things, he testified:
“I said that if I found anything that suited me, of course, I would trade, but 'not for him to go out for me.”
Plaintiff moved that 'the “last part of the answer be stricken out.” The motion was granted, and defendant excepts. Just what part, or how much, of the answer this motion was intended to reach, or upon what theory it was granted, does not appear from the record before us. The question that elicited the answer is not preserved in the printed record. Defendant contends that the answer was directly responsive, and it appears to be material to' the issue that was being tried. But we are unable to see how defendant was prejudiced by having the last .part of the answer stricken out. The answer indicates, that defendant de- ■ dined to accept plaintiff’s services and, had defendant gone no further with the matter, might have precluded plaintiff’s recovery. [514]*514But, if be ever made such a statement to plaintiff, he mus’t have changed his mind afterward, for he proceeded with the plaintiff just as plaintiff testified he bad agreed to do; so, that, if the ruling complained of was erroneous, it was without prejudice.
[5] Whether the evidence is sufficient to support the verdict or not depends upon whether plaintiff acted as the agent of the defendant in making said trade, or whether he acted as a “middleman” only in bringing the defendant and the said! Webber Land Company together. In defendant’s • -amended answer he alleges that, at the time of the making of the alleged contract of employment, plaintiff was the agent of the said Land Company; that he acted as the agent of -that company in making said trade; and that he Charged to and received a commission from that company for services rendered in effecting said trade. Plaintiff admitted- that he had charged a commission to said company, hut whether it was -ever paid or not is wholly immaterial. If he was employed as agent for defendant in making said trade, he could not act as agent -for said land company at the same time, and an attempt to collect a commission from- that company would preclude him from collecting a commission from, defendant for services rendered in the same transaction. But plaintiff contends that he was not acting as the agent of defendant in the making of said trade-; that ■he was employed only to- find a purchaser with whom defendant could trade for landi, upon terms satisfactory to himself.
The distinction between a real estate agent and a mere middleman is discussed at considerable length in Langford v. Issenhuth, 28 S. D. 451, 134 N. W. 889. In that case -we held that, where -a plaintiff seeking to recover commissions has taken no part in- the transaction other than to bring the buyer and seller together, he is entitled! to recover from both parties, and it is immaterial whether either of the parties to the trade knew of plaintiff’s 'employment by the other. In Ranney v. Donovan, 78 Mich. 318, 44 N. W. 276, it Is said:
“A broker who merely brings the parties together, and has no hand in the negotiations between them, and where they make their own bargain without his aid or interference, can receive legally a compensation from both of them, though each was ignorant of 'his employment by the other.”
This language is particularly pertinent to this case. The trial [515]*515court instructed the jury that a “middle man’’ is one whose duties are limited by his contract to procuring a purchaser to take the property, as applied to this case, on terms satisfactory to his employer, while a “real estate agent,” as defined in defendant’s answer, is one who> in addition to the duties of a middleman, is also employed ■ to exercise discretionary authority in the interest and for the benefit of his employer. Plaintiff claims that his employment was that of middleman only, and there certainly is no evidence in the case to show that he was ever anything more than that, or that he ever assumed. to be anything more. Defendant in his. brief says:
“True, the plaintiff piloted the defendant to Farmer, where they found Skinner, but thence forward plaintiff was a cipher.”
This admits, plaintiff’s whole case. But plaintiff did more than to pilot defendant to Fanner. He accompanied plaintiff and Skinner to Wessington Springs, where they met -the officers of the Webber Company; hut Skinner was the agent of that company, and it was not essential that plaintiff should have gone farther than Farmer. The fact that defendant was piloted by plaintiff shows that defendant found both Skinner and the Web-ber Land Company through the instrumentality of plaintiff, and the fact that plaintiff “thence forward became a cipher” shows that he took no part in the negotiations that culminated in the exchange of properties. Upon the whole record, we believe that the jury was justified in, finding that plaintiff was employed by defendant; that plaintiff was the procuring cause of bringing, about the exchange between defendant and the Webber Land Company; and that plaintiff is entitled to a commission from defendant.
The judgment and order appealed from are affirmed.
<SMITH, J., not sitting.