Meyer v. Burmeister

136 N.W. 1126, 29 S.D. 458, 1912 S.D. LEXIS 174

• Court: South Dakota Supreme Court
• Decided: June 25, 1912
• Status: Published

Opinion

McCOY, P. J.

Plaintiff brought this action against defendant to recover commissions on the sale of a certain one-half section of land sold by or through A. E. Else & Sons of Doland, S. D., in 1905, to Steffen and Steinbeck. There was verdict and judgment in favor of plaintiff for $389.23. Defendant appeals, alleging insufficiency of the evidence to justify the verdict.

There is but very little conflict in the evidence. It appears that in the month of March, 1905, -the plaintiff and defendant and Steffen and Stein-beck all resided in Scott county, Iowa, and were all contemplating a trip to South Dakota to purchase real estate. On March 13th defendant wrote Else & Sons that he had a good prospect to bring some land purchasers to South Dakota and that he would like to be appointed agent for Else & Sons and make some arrangement 'for commissions. On March 17th Else & Sons replied to defendant and stated to defendant that they would be glad to have defendant represent them as general agent for Scott county, and “we will allow you á commission of $1.30 per acre on all lands sold by you or through agents appointed in your ¡county by you; this will give you 50 cents per acre on lands sold to your men through your agents and what business you can bring personally will net you a good big commission.” On March 28th plaintiff also wrote Else & Sons that be had a little party of purchasers coming to Doland, and that he would like to be appointed agent for Else & Sons and make some arrangements as to commissions. On' March 31st, Else & Sons replied to plaintiff stating: “We were pleased to -hear you had a little party ready to come to Doland. We inclose you a map which will give you some information, and as regards commissions will say we will 'do -the right thing by you and on your first deals made on this trip we will divide our commission with you, and afterwards we will make some satisfactory agreement.” It appears that both plaintiff and defendant, prior to the writing of the foregoing letters, had been talking to Steffen and Steinbeck to induce them to g‘o to Doland -to purchase land; that both plaintiff and defendant accompanied them to Doland, plaintiff testifying that he presumed defendant was with them as a prospective purchaser of lands. It appears that neither plaintiff nor defendant prior to the making -of said trip to Doland knew the other was agent for Else & Sons. Plaintiff testified that he had no talk with defendant concerning commissions. Defendant -testified -that prior to the sale of the lands to Steffen and Steinbeck he never had any conversation with plaintiff concerning land matters or the sale of lands, and that neither Steffen nor Steinbeck had mentioned the fact to him that they had been talking with plaintiff concerning the ■sale of lands or concerning going to Dakota with plaintiff. Defendant testified that, after the -sale of the land had been closed, he said to plaintiff that, as plaintiff was their agent, he ought to take them to Aberdeen and show them a good time; but at that time he had been informed that plaintiff was also to get a piece of money out of the deal. Else & Sons paid defendant $633 commissions on the sale to Steffen and Steinbeck, and refused to pay any commission to plaintiff. Whether plaintiff or defendant, or both of them, were entitled to commissions, is wholly immaterial to the consideration of the issues presented on this appeal.

[1] The vital question here is whether or not any ground for recovery by plaintiff against defendanf is shown by the evidence. Respondent can only recover upon some express or implied contractual relation with defendant, the appellant. It is the contention of respondent that under the contract between Else & Sons and appellant, whereby appellant was' to receive $1.50 per acre when he personally procured purchasers, and 50 cents per acre when lands were sold through subagents of appellant, the $1 per acre thereof going to the subagent as his commissions, that respondent was a subagent of appellant, and was so recognized by him, and that (appellant having received the full $1.50 per acre commission, plaintiff as his subagent was entitled -to the $1 per acre. We are of the opinion that this contention of respondent is not sustained by the evidence, and that there is a total lack of ■evidence tending to show any express or implied contractual relation betwen plaintiff and defendant.

[2] The fact that defendant referred to plaintiff as the. agent "in a conversation after the transaction of the sale of the lands was closed, and at a time when defendant understood that plaintiff was to receive something out of the deal, has no tendency to establish either an express or implied contract between appellant .and respondent..

Under the view we take of the case, it will be unnecessary ■to discuss other assignments of error.

The judgment and order appealed from are reversed, and the •cause remanded.