Stieglitz v. Settle

KERRIGAN, J.

This is an action instituted by the plaintiff to recover commissions as a broker for services rendered in the sale of the interest of the defendant, Mrs. Maria E. de Settle, in a certain tract of land consisting of 886 acres. The plaintiff had judgment for the sum of $12,581.20, and the defendant appeals, the ground for reversal urged being that the trial court, by its instructions to the jury, based upon what it deemed to be the law of the case, practically withdrew the question at issue from their consideration. We think this contention must be sustained. A reference to some of the testimony in the case will show the grounds upon which we base this conclusion.

Prior to and at the time of said sale the plaintiff was an attorney at law practicing in San Pedro, and the defendant, being the widow of one Aurelia W. Sepulveda, also resided in that locality. Later she married Henry Settle, and the latter for that reason has been joined as a party defendant. The deceased husband of Maria E. de Settle left a large estate consisting principally of land, his only heirs being said defendant and his daughter.

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Part of the estate coming to said defendant was an undivided one-half interest in the tract of land above referred to. She was unable to speak the English language, nor could she read or write any tongue. At the time of the transaction here involved she had given a general power of attorney to one Richard Mahar, who had been the administrator of her deceased husband’s estate, and the plaintiff had acted as attorney for the administrator. The plaintiff had also represented the defendant in important litigation, and was also acting as her attorney in a partition suit instituted by said daughter against her for the division of said 886-acre tract, which suit was pending at the time of the sale by him of the defendant’s interest in said land. The defendant, being indebted, decided to sell said interest, and after talking the matter over with her attorney in fact Mahar, directed him to secure a purchaser therefor. The record does not show when this conversation took place, but later and in the month of February, 1912, Mahar reported to the plaintiff that the land had to be sold, and that the highest offer he had been able to secure for the defendant’s interest therein was $250 per acre. Thereupon the plaintiff stated as his opinion that the price offered was too low and that he thought he could secure a purchaser at a better price. He accordingly requested Mahar to see the defendant and ascertain whether she would authorize him to sell the land and pay him the usual commission. Mahar, according to his testimony given at the trial, took the matter up with the defendant, and reported to the plaintiff that she was willing to permit him to sell the property and to pay him a commission. Plaintiff thereupon began negotiations with one Geo. H. Peck, also a resident of San Pedro, with the result that on the 19th of March, 1912, plaintiff effected a sale of defendant’s interest in the land for $400 per acre to Peck. According to the testimony of the plaintiff and Mahar, the original authority from the defendant to the plaintiff to sell the property was verbal, but when plaintiff was informed by Mahar that there would be some delay in paying the commission he requested that the authority theretofore given be put in writing. Thereupon plaintiff prepared such a contract, dating it two days earlier than the agreement of sale with Peek, and it was executed by