Moebs v. Gardiner & Dent
Moebs v. Gardiner & Dent
Opinion of the Court
delivered the opinion of the Court:
The court committed no error in instructing the jury to return a verdict for $1,500, unless they found a lack of good faith on the part of the appellee. When the appellant permitted the lots mentioned in the contract to be sold under the deed of trust, the right to demand payment of $1,500 became fixed, whether appellant or a third party became the purchaser at the deed of trust sale. A sale had then been made and the property had not brought “as much as $2,000 over and above” the encumbrance. Under the terms of the contract, if those lots had sold for less than the encumbrance, the appellee still was to receive $1,500, and that was the amount the court permitted it to recover.
An examination of the contract between appellant and Lath-am discloses that it therein is specified that each party “sells and agrees to convey” certain real estate to the other. Latham then “agrees to deliver3 to appellant the live stock and chattels mentioned. Under the terms of this agreement, which purported to confer upon the appellant nothing more than a possessory right, we do not think the court erred in refusing to charge as requested. Under the facts stated, therefore, whether appellant or Latham was to assume this chattel mortgage was a question for the jury, and that question was fully and fairly submitted to that tribunal.
Nor was it error to refuse to permit the appellant to ask Latham how much he paid for the sixty-seven head of cattle. Whether he paid much or little had no bearing on the question which one of the parties assumed the chattel mortgage.
Judgment affirmed, with costs. Affirmed.
Reference
- Full Case Name
- MOEBS v. GARDINER & DENT
- Status
- Published
- Syllabus
- Contracts; Real Estate Agents; Evidence; Instructions to Jury. 1. Where an owner of real estate agrees to pay a real estate agent $2,000 as a commission for effecting an exchange of his property for other property, out of the proceeds of the sale of such other property, and the agent agrees that if the property does not bring as much as $2,000 over and above the encumbrance upon it, he shall receive only $1,500, the agent is entitled to receive $1,500 if the property is sold at a foreclosure sale and bid in by the principal for even less than the amount of the encumbrance. 2. Where one of the parties to an exchange of properties agreed to deliver to the other party certain cattle, and, in the settlement of the exchange, which was effected through the agent of one of the parties, a chattel trust encumbrance on the cattle was charged against the party who was to take them, although he claimed that he was to be given credit for that item, it is not error for the trial court, in an action against such party by the agent for a commission for making the exchange, to refuse to instruct the jury that if the contract of exchange failed to state that there was no encumbrance upon the cattle, the presumption of law was that they were free of encumbrance; but it is sufficient if the court instructs the jury that if they found in making the statement the agent acted fraudulently toward the plaintiff then their verdict should be for the plaintiff; nor is it error in such a case for the trial court to refuse to permit the defendant to ask the .former owner of the cattle how much ho paid for them.