Neilson v. Lee

Real Estate Broker—Agent— Sale—Commissions—Construction or Contract.'—By an agreement in writing, the plaintiff was authorized by the defendant, at any time within sixty days, to sell his mine for a sum not less than sixty-five thousand dollars; and within the time specified, made a written agreement with H., a responsible purchaser, in the name of his principal, for the sum of seventy-five thousand dollars—H. to have twenty days to examine the title, and if the same was not good. and to the satisfaction of H., the agreement to be void. At the same time the plaintiff made a separate written agreement with H. that if the defendant did not sign the agreement on or before twelve o’clock M., August 26, 1878, H. should be released from the contract. The defendant refused to sign the agreement within the time specified, and H., on that ground, notified the plaintiff that he withdrew from the contract. The Court found that the plaintiff did not procure a purchaser. Held: By refusing to ratify the agreement the defendant refused to sell the property to H. at the price, and on the terms which he had agreed with the plaintiff to sell it; and this being so, the finding that the plaintiff did not procure a purchaser able and willing to purchase the property is against the evidence.

Appeal from a judgment for the defendant and an order denying a new trial in the Third District Court of the County of Alameda. McKee, J. The complaint alleges: That on the thirtieth day of June, A. D. 1878, at the City and County of San Francisco, said plaintiff and defendant executed and entered into a written agreement, of which the following is a copy: “Whereas, James R Lee, of the City and County of San Francisco, is. seised at law and in equity of certain mining claim on the Comstock lode, being part of the ground now occupied by the Mexican Gold and Silver Mining Company, and some time since standing in the official records in the name of V. A Houseworth, and being in length along the side lode eighty-three feet and three inches, be the same more or less. It is agreed between the said James R. Lee and William M. Keilson, that for and in consideration of the sum of five (5) dollars in United States gold coin, to him duly paid, the receipt of which is hereby acknowledged, the said Lee agrees to appoint the said Neilson to act as his sole agent in the sale of said mining claim, upon the terms following: “First—That out of the proceeds of any sale effected of said claim, the said Lee is first to receive fifty thousand ($50,000) dollars in gold coin, and any balance obtained over that amount, to be equally divided between the said Lee and Neilson, but no sale to be effected that does not yield to the said Lee a total of fifty thousand ($50,000) dollars gold coin, as his share. But, notwithstanding, if the proceeds of such sale amount to no more than fifty thousand (50,000) dollars, the said Lee will pay to the said Neilson five per cent, of that sum, or twenty-five hundred ($2500) dollars. “Second—That no expenses are to attach to the said Lee, unless a sale is effected; and not then, unless his share of the proceeds exceed fifty thousand ($50,000) dollars. “Third—That this agreement is to remain in force for sixty days from the first day of July, 1878, with the right retained by said Neilson to renew it for thirty days thereafter. “(Signed) James E. Lee, “William M. Neilson.” That afterwards, to wit, on the twenty-first day of August, A. D. 1878, at the said City and County of San Francisco, the said plaintiff and defendant executed and entered into another written agreement, of which the following is a copy: “San Francisco, June 80th, 1878. “Whereas, James E. Lee, of the City and County of San Francisco, is seised at law and in equity of a certain mining claim on the Comstock lode, being the following described property, situated in the County of Storey, State of Nevada, to wit: A certain mining claim on the Comstock lode, being the undivided one sixth interest in the five hundred feet of ground on said Comstock lode, formerly owned by Valentine A. Houseworth, and being the property now owned by the said James E. Lee: It is agreed between the said James E. Lee and William M. Neilson, that for and in consideration of the sum of five dollars ($5) in United States gold coin, to him duly paid, the receipt of which is hereby acknowledged, the said Lee does appoint the said Neilson to act as his sole agent in the sale of said mining claim, upon terms following: First—That out of the proceeds of any sale effected of said claim, the said Lee is first to receive sixty-five thousand dollars ($65,000) in gold coin, and any balance obtained over that amount, to be equally divided between the said Lee and Neilson. Second—That no expenses are to attach to the said Lee, unless a sale is effected, and not then, unless his share of the proceeds exceed sixty-five thousand dollars ($65,000). Third—That this agreement is to remain in force for sixty days from the first of July, 1878, with the right retained by the said Neilson to renew it for thirty days thereafter. “Signed) “James E. Lee, “Wm. M. Neilson.” But this last-named agreement was not to be effectual to change the former agreement as to the amount the said plaintiff was to receive for his services in selling said property, and, as evidence of this, this said plaintiff and defendant entered into another written agreement, signed by defendant, of which the following is a copy: “ San Francisco, August 21st, 1878. “ Wm. M. Neilson, Esq.—Bear Sir: It is of course understood and agreed between us, that the settlement for your services in the sale of my property on the Comstock lode is to be on the basis of the first agreement, which allows you one half of all that may be realized from any sale over fifty thousand dollars ($50,000). “(Signed) James E. Lee.” Plaintiff further alleges that on the twenty-third day of August, 1878, and while plaintiff was the authorized agent of the defendant to negotiate the sale of the property herein described, and authorized to execute an agreement for the defendant with person or persons for that purpose, defendant, by his said agent, negotiated a bona fide sale of said property, and executed a written agreement with the purchaser, H. A. Hedger, of which the following is a copy: “This agreement made this twenty-first day of August, 1878, between James E. Lee, of Oakland, Alameda County, State of California, by his sole agent (and attorney-in-fact) William M. Neilson, of the City and County of San Francisco, and H. A. Hedger, of the said City and County of San Francisco, witnesseth: That the said James E. Lee agrees to sell and convey to the said H. A. Hedger, at such time as the said Hedger may desire, within twenty days from August 21,1878, the one sixth undivided interest in that mining ground and claim, situate in the Virginia Mining District, in the County of Storey, and State of Nevada, adjoining the claim of the Ophir Silver Mining Company on the north, and containing five hundred (500) feet, and known as the ground and claim of the Atchison Gold and Silver Mining Company, and being the premises conveyed to the said James E. Lee by deed from Y. A. Houseworth, dated the twenty-ninth (29) day of September, A. D. 1874, and acknowledged the twenty-first (21) day of December, A. D. 1874, by his attorney-in-fact, before Edward Chattin, Commissioner for the State of Nevada, and residing in San Francisco, California, and recorded December 24th, A. D. 1874, in Liber 34 of Deeds, in the said County of Storey, State of Nevada, and to make and execute unto the said H. A. Hedger, a good and sufficient deed and transfer, conveying the absolute title of said property to him. In consideration whereof, the said H. A Hedger agrees to pay to the said James R. Lee, or his said agent and attorney, on receiving said deed duly executed, conveying the title aforesaid, the sum of seventy-five thousand (75,000) dollars in United States gold coin. It is further agreed by and between the parties hereto, that the said H. A. Hedger may have twenty days from said twenty-first day of August, 1878, in which to examine and pass upon the title to said premises, and if the said title is not good and sufficient, either in whole or in part, and to the satisfaction of the said H. A. Hedger, then this agreement becomes void and of no force or effect whatever. “In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. “ (Signed) “H. A. Hedger, “ Jas. R. Lee, “ By his sole agent and attorney in fact, Wm. M. Neilson.” Plaintiff further alleges that defendant agreed, at the time of executing the agreement last recited, in writing, through his said agent the plaintiff, with the said H. A. Hedger, of which agreement the following is a copy: “ I, Wm. M. Neilson, the undersigned, do hereby agree with H. A. Hedger, that if James R. Lee my principal, does not sign, ratify and approve the agreement made this day by the said Neilson, as his agent and attorney, with said H. A. Hedger, on or before 12 o’clock noon, August 26, 1878, then that the said H. A. Hedger be released from all obligations therein, and from all covenants and obligations contained in said contract. “August 23,1878. “ Wm. M. Neilson.” That' notice of this agreement was given in writing by plaintiff to defendant August 23,1878, in the city and county of San Francisco, of which the following is a copy: “Me. James R. Lee : You will take notice that the parties purchasing your claim in the Comstock lode, in the State of Nevada, from me, under my contract with you, empowering me to make the sale of your claim, have reserved the right to avoid the purchase from me, unless the instrument of sale from me to them is confirmed and executed by you by 12 o’clock (noon), August 26,1878. The said instrument is now at the office of your attorney, Mr. Byrne, awating your signature. “ Friday, August 23, 1878. “ Respectfully, “ Wm. M. Neilson.” Plaintiff further alleges that on the twentieth day of August, 1878, he served on the defendant a draft copy of the first recited agreement made with the said Hedger, and at the same time delivered to said defendant a written notice, of which the following is a copy: “San Feancisco, August 20,1878. “ James R. Lee, Esq.—My Dear Sir: It affords me satisfaction to inform you that I have made sale of your claim on the Comstock Lode for the sum of $75,000 U. S. gold coin. In order that you may understand the whole transaction I inclose you a copy of the agreement, which I have, under my powers, agreed to sign on your behalf. There are some expenses to be paid, the paying of which will be greatly to your advantage, which can be arranged amicably between us. Though your assent to the agreement is not necessary, yet I am desirous of having it; but failing in that, I shall proceed to sign the contract without delay. “ Sincerely yours, “ Wm. M. Neilson.”