Crane v. McCormick

Paterson, J. On September 30,1866, the defendants authorized De Jarnatt & Crane to sell certain real estate at any time within a year, and agreed to pay them five per cent on thirty-five thousand dollars, the limited price, and one half of any excess of that amount which might be realized from the sale. The written authorization contained the following provision: “And in consideration of your expenses and efforts in attracting settlers to the county, it is agreed that in event of the withdrawal of said property from sale, or in event of sale through any means during the continuance of this power (one year), the same commission will thus be paid as though sale had been made by you.” On September 2, 1887, the defendants, without any notice to their agents, sold and conveyed the land to R. F. Osborn and Isaac Upham, it is alleged, for the sum of forty thousand dollars. Defendants refused to pay De Jarnatt & Crane anything on account of commissions, and the latter assigned their claim to plaintiff, who, as their assignee, demanded judgment for the sum of $4,250. These are the only material facts stated in the complaint, which covers twenty-five printed pages of the transcript. It is not alleged, except inferentially, that De Jarnatt & Crane ever incurred any expenses or made any efforts to sell the land or attract settlers to the county; but there was no demurrer to the complaint, and the defendants cured the defect and perfected the issue by an affirmative allegation that De Jarnatt & Crane, to induce the defendants to enter into the contract, promised to publish and distribute a pamphlet advertising the land, but that no such pamphlet was ever published, nor was any effort 'ever made to advertise or sell the land.

The answer covers seventy-two pages of the transcript, and is a hotchpot of denials, allegations of affirmative [180]matter, probative facts, and superfluous circumstances. From this mass of redundant matter and tiresome reiteration, jumbled together in utter disregard of the provisions of sections 437 and 441 of the Code of Civil Procedure, we have been able to extract sufficient to show that the defendants rely upon the following defenses: That the provision of the contract above quoted was left therein by mutual mistake of the parties, and defendants always supposed, until the commencement of this action, that it had been eliminated from the printed form before execution; that it was understood and agreed no commissions should be paid unless the sale was effected by or through the agents; that said agents never procured a purchaser, and never did anything to advertise the land or attract settlers to the county, although they induced defendants to enter into the contract by representations that they would do so; that defendants did not sell the land for cash, but exchanged the same for other lands in part payment and the balance in cash, and that the value of the entire consideration received did not exceed thirty thousand dollars; that there was no consideration for the execution of the agreement, and if there was, the same has failed; that plaintiff is not the real party in interest, no assignment having been made to him by De Jarnatt & Crane.