Evans v. Hindes

THE COURT.

The plaintiff, as assignee of E. J. Davis, a real estate broker, sues to recover a sum which he claims as a balance due upon a commission for effecting an exchange of properties for the defendant.

It is conceded that Davis was entitled under the contract as written to a commission for his services amounting to the sum of $1,650, but it is contended by the defendant that Davis agreed to accept in liquidation of his claim the proceeds of a certain potato crop, and that such proceeds having been turned over to him, the obligation under the contract was discharged, although Davis received only the sum of $670 as such proceeds.

The contract for the broker’s commission is in the usual form and subscribed by the defendant. Immediately following it, and apparently on the same sheet of paper, and doubtless executed on the same day, is the following addenda:

“I, the undersigned, accept the above employment, and agree to extend the time of payment until such time as the crop is harvested, it being mutually understood that when the crop is sold, the proceeds to amount of sixteen hundred fifty ($1650.00) dollars is to be turned over to me in liquidation of above indebtedness.

“E. J. Davis.”

From the record it appears that after the negotiations for the exchange of properties were completed, Davis and the defendant discussed and agreed upon the amount of the former’s compensation. The amount being agreed upon, and the written form of contract providing that it should be payable upon the consummation of the exchange, the defendant informed Davis that unless he received some money from a certain

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source, he would be unable to settle with Davis promptly, and that the latter would have to wait until he had harvested a crop of potatoes' belonging to him, which would be in about sixty days. This was satisfactory to the broker, and the above quoted, addition to the contract was signed. There seems to have been a further conversation concerning the time Davis should receive the amount of his commission, during which conversation it transpired that the defendant had been offered two thousand dollars or two thousand five hundred dollars for his potato crop. At this time apparently both parties expected that the proceeds from the crop would exceed the amount of the commission, .so that a part of them would be payable to the defendant. Davis, according to his testimony, was not informed as to the proportionate interest in this crop owned by the defendant—which in fact was but one-fifth.