
    W. E. Dorrington et al. v. John W. Powell.
    Filed October 20, 1897.
    No. 7498.
    1. Factors and Brokers: Contract to Make Saxe: Compensation. In an action for tlie recovery of an agreed compensation to be paid on the making of a sale or disposition of property, a broker is not entitled to recover for merely finding a purchaser, where the sale failed of consummation.
    2.-: -: -. A party cannot recover on a quantum meruit where he pleads and relies on the trial solely upon a special contract.
    Error from the district court of Richardson county. Tried below before Babcock, J.
    
      Reversed.
    
    
      Reavis & Reavis, for plaintiffs in error.
    
      F. Martin, contra.
    
   Ryan, C.

As this case was tried in the district court of Richardson county on the same pleadings that it had been determined upon in the county court of that county, it will be necessary to describe them but once in a general way. John W. Powell, by Ms petition, claimed of tbe defendants, W. E. Dorrington and David D. Eeavis, partners doing business under the firm name of Dorrington & Eeavis, tbe sum of $225, with interest. His cause of action was stated in tbe following language: “On tbe 10th day of January, 1893, tbe plaintiff entered into tbe service of tbe defendants at their request as agent to sell and dispose of certain goods of the value of $8,000, there in a storeroom in tbe city of Falls City, Richardson county, Nebraska, for which tbe defendants agreed to pay tbe. plaintiff tbe sum of $225. Tbe plaintiff sold said goods for tbe benefit of tbe defendants and has duly performed all tbe conditions in the contract on bis part to be performed.” Following tbe above aveiunents there were allegations of a refusal to pay, and a prayer for judgment in tbe sum of $225 and interest. The answer was a general denial. There was a verdict and judgment in favor of Powell in tbe sum of $112.50, for tbe reversal of which judgment Dorrrington & Eeavis have prosecuted error proceedings to this court.-

On tbe trial, to sustain bis action, Powell introduced in evidence a paper of which the following is a copy:

“This agreement, made this 10th day of July, 1893, between W. E. Dorrington and David D. Eeavis, of tbe first part, and F. S. Oolby, witnessetb: That said first party agrees to sell to said second party their full stock of furniture, carpets, coffins and hearse, and all undertaker’s goods at wholesale cash prices, including hearse, and on all damaged goods a reduction shall be made in proportion to tbe amount of tbe damages; and second party agrees to pay for the same as MIoavs: Said first party to have tbe option of taking all of three separate tracts of land in Kansas, described as follows, to-wit: South ¿ of tbe southwest sec. 2, and tbe E. -1¿ of tbe S. E. of section 3, town 2, south of range 25, west. Cash. 160 acres in Norton Co. at $2,000 for said -j; sec., subject to a mortgage of $1,200 (tbe E, G, Doom place, 6 miles southeast of Kanona). Cash. 160 acres near Kanona, Decatur Co. at $12.50 per acre (south \ of S. W. & N. E. 1-of the S. W. J and the southeast of the N. W. N sec. 9, town 2, south of range 29). Cash. 160 acres near Oberlin, Decatur Co., at $8 per acre. Said two last pieces are clear of incumbrances. Also a house and two- lots in Lincoln, Neb., described as follows: Lots 5 and 6, block 88, University Place, Lincoln, Neb., at $3,000, clear! Of the said house and lots below trade of land — and the balance over and above such amounts and up to the invoice •of said store, to be paid in cash by the second party, it is understood that all over the property and $2,500 cash, said Dorrington and Reavis will take good secured notes. Said invoice to be made and this contract carried out as soon as said first party can personally examine said property and the said invoice be made.
“Each of said parties hereto agree to place in the hands of J. W. Powell the sum of $100, which sum shall be forfeited by the party refusing to execute this contract, and be paid by said Powell to the party willing to carry out this contract. * * * The price of all goods that cannot be agreed upon shall be left to some wholesale furniture house. Hearse to be taken at the present value.
“W. E. Dorrington.
“David D. Reavis.
“S. F. Colby.
“Witness: John W. Powell.
“We, the undersigned, agree to take the Lincoln property and one hundred and sixty acres north of Oberlin, Kansas, Decatur Co., as looked at and above described.
“Dorrington & Reavis,
“By W. E. Dorrington.”

It is observable that the value of the property to be transferred to Colby was- not fixed by the above agreement. That fact was afterwards to be determined. The property itself was described in general terms, and when the parties attempted to fix values there arose a dispute as to whether or not certain property which Dorrington & Reavis insisted Oolby should take was within the scope of the general terms above noted. This property was a hearse, house, refrigerator, and some walnut lumber. While this property does not seem to have been of great value, the difference in respect to it prevented the consummation of the sale. Plaintiff alleged that the property sold was of the value of $8,000, and certainly by this statement he at least should be bound. Dorrington & Reavis agreed to accept the 160 acres near Oberlin at $8 per acre, and the Lincoln property at a valuation of $3,000. This covered $4,280 of the consideration to be paid by Oolby. He was also to pay $2,500 in cash. This made the amount as to which the media of payment was agreed upon $6,780. The balance of the consideration (which, under the averments of the plaintiff’s petition, must be assumed to be at least $1,220) Dorirington & Reavis agreed to take in good secured notes. In view of these matters of difference, the contract to sell was not complete. In Wallingford v. Burr, 15 Neb., 204, the principles applicable, as stated in the syllabus, are in this language: “When anything remains to be done between the buyer and seller before the goods are to be delivered, a present right of property does not attach in the buyer. An agreement to sell and transfer property at prices to be afterwards determined is an executory contract.” The jury were instructed, in effect, that if the agreement between plaintiff and defendants was that plaintiff should find a purchaser for or make a sale of the property, plaintiff would be entitled to recover the usual or regular commission paid for finding such purchaser or making such sale. This was erroneous in two respects. There was in the petition no averment of a contract to find a purchaser. The undertaking of plaintiff, as he himself described it, was to sell and dispose of the property. The instruction therefore recognized a right of recovery for services for the rendition of which plaintiff had asserted no claim-. Again, the right of recovery was in the petition based solely on a special contract which was pleaded, and under these issues an inquiry as to the usual or regular commission on sales was wholly irrelevant. (Imhoff v. House, 36 Neb., 28; Powder River Live Stock Co. v. Lamb, 38 Neb., 339; Mayer v. Ver Bryck, 46 Neb., 221; Smith v. Brown, 46 Neb., 230.)

Because of the errors indicated, the judgment of the district court is reversed and the cause is remanded for further proceedings.

Reversed and "dismissed.  