E. P. Vandercook Co. v. Wilmans Co.

COOPER, J. This action was brought to recover $791.87 as commissions for the sale of real estate under a written contract. The case was tried before the court, findings filed, and judgment ordered and entered for plaintiff. Defendant has appealed from the order denying its motion for a new trial. The court found that, pursuant to the authorization contained in the contract, the plaintiff procured a purchaser for the lands therein described who was ready, able ancj. willing to [312]purchase, and thereby completed its services and earned its commissions. The defendant contends that the evidence does not support the findings of the court in this regard. The findings are conclusive upon us if there is substantial evidence to support them, even though the evidence may be conflicting or may preponderate in favor of defendant.

The defendant was, at the times mentioned in the pleadings and findings, a corporation. Its capital stock was divided into three hundred shares, and was at the time the contract was made owned and held by J. M. Wilmans, F. W. Wilmans, Lillian W. Wilmans, Clara E. Wilmans, and Martha J. Wilmans. J. M. Wilmans was the secretary and managing agent, and owned two-thirds of the shares of the capital stock of the corporation. Its assets consisted of about fourteen hundred acres of land situate in Stanislaus county in this state. The managing agent of defendant, J. M. Wilmans, spoke of the defendant’s property as his own land and as being mortgaged for $75,000, or, in his language: “I owed $75,000 on the whole property. ’"’ There is evidence .to the effect that on May 21, 1903, Merle, the agent of plaintiff, was in Stanislaus county with one Witcher, who was looking at lands with a view of purchasing, and- Merle was showing Witcher different tracts of land. They saw the lands belonging to the defendant, and Witcher seemed to be pleased with them, and to desire to purchase them, or at least a part of the land owned by the defendant. Merle procured from defendant, through J. M. Wilmans, its agent, with admitted power to act, a contract in writing, authorizing the plaintiff, exclusively, to sell a tract of land described therein, containing three hundred and ten acres, at $100 per acre, and another lot containing two and one-quarter acres at $300 per acre. The contract contained the clause: “If said property is sold, or a purchaser is found by E. P. Vandercook Co., or through their agency, we agree to pay the said E. P. Vandercook Co. 2% per cent, commission on any amount for which said property shall be sold.” The contract was to continue for one month from date, May 21, 1903, and was continued by written extensions to July 20, 1903. It contained a clause that it should be irrevocable until withdrawn by written notice.