Benedict v. Wilson

TAGGART, J.

Action to recover on contract for commis-

sions earned and disbursements made in sales of real estate by plaintiff’s assignor. The case was submitted on an agreed statement of facts.

The contention of plaintiff is that he was entitled to collect $750 on account' of the disbursements made by him under the contract, consisting of $500 on account of presents to stimulate sales and $250 paid for traveling expenses in going to and from the place at which the sales were made, and commissions on all sales made by him, amounting in the aggregate to $2,310.94, on which he had received the sum of $1,021.25,

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leaving a balance due of $2,039.69. The defendants admitted by the agreed statement that plaintiff’s assignor had expended $325 on account of presents, and that they owed plaintiff under the contract the further sum of $504.18, included in which was the $250 transportation charge. The defendants contend, however, that of the commissions claimed by plaintiff $1,035.50 were computed on sales made by plaintiff’s assignor, the Metropolitan Land Company, under the contract, but upon which nothing “has been or will be received.”

The court gave judgment for the sum of $325 on account of presents, $250 for traveling expenses, and $1,289.68 balance due on commissions; the latter sum including the $1,035.50 to which defendants object. The question here presented is the right of plaintiff to recover commissions on the sales in which the purchasers have defaulted. The contract does not make the Metropolitan Land Company a guarantor of the payment of the purchase price on the sales made by it. Its duties were to make a sale of the lots at private sale, or public auction, collect all first moneys, make out bonds and contracts, and get signatures thereto, and to render accounts of its transactions and of moneys received, and to furnish all data necessary for the execution of deeds to the purchasers.

There is nothing in the statement of facts showing that' it failed to perform these duties or any of them. The language of the statement referring to the defaulting of purchasers is not entirely clear, but the only matter as to which any question can be raised in respect to the performance of the contract by the Metropolitan Land Company is that of collecting first moneys. Paragraph “3” of the agreed statement is as follows: “That the commissions accruing on defaulted contracts of sale with purchasers at the auction sale had under such contract by the Metropolitan Land Co., and no part of which has been or will be received, amount to $1,035.50.” If it were to be assumed from the statement that a certain sum or percentage of the purchase price was required to be collected on the fall of the hammer, or no sale, there is nothing to negative the inference that any amounts so required t'o be collected were actually collected by the land company. The inference that such sums were not collected does not necessarily follow from the language used, to wit: ‘ ‘ and no part of which has been or will be received.” This failure of receipt may refer