
    [No. 5346.]
    [No. 2994 C. A.]
    Keel v. Schaupp.
    1. Appellate Practice — Findings. Based on Conflicting Evidence.
    Where a conflict in the testimony is resolved by the court in favor of one of the parties, such finding cannot be disturbed on appeal. — P. 73.
    2. Vendor and Vendee — Contract of Sale — Evidence.
    Plaintiff offered certain real estate to defendant for $1,600, and defendant made a memorandum of the price, and replied: “You will hear from me,” which statement was again made when later declining an invitation to examine the property. Defendant afterwards wrote plaintiff, asking if he would take $1,200 net, adding: “I think I can make a deal at that figure”; to which plaintiff answered that $1,600 was the least price; and to this defendant replied: “I do not know that I can make a deal at that figure, but will try my best.” Later, defendant requested the plaintiff to send a deed, made out in blank as to the consideration and grantee, with an abstract of title, to a bank, and stated that the bank would send plaintiff $1,600, cash, stating that he desired the blanks so that he could fill in the “name and amount to whom I sell.” Held, that such facts indicate that defendant was endeavoring to sell the land as broker, and do not show a contract to purchase, for himself. — P. 73.
    3. Appellate Practice — Prejudice—Ruling on Evidence.
    Where it affirmatively appears that the admission of incompetent evidence was not prejudicial, such ruling does not constitute reversible error. — P. 74.
    
      
      Appeal from the District Court of Rio Grande County'.
    
    
      Hon. Chas. C. Holbrook, Judge.
    
    Action by Enos Keel against John M. Schaupp. From a judgment for defendant, plaintiff appeals.
    
      Affirmed.
    
    Mr. Ira J. Bloomeield, for appellant.
    Mr. Jesse Stephenson, for appellee.
   Mr. Justice G-abbert

delivered the opinion of the court:

This is an appeal from a judgment rendered in an action brought by appellant, as plaintiff, to recover from appellee, as defendant, the purchase price of land which plaintiff claimed to have agreed to sell defendant, and which the latter agreed to purchase. There was judgment for defendant, from which the plaintiff appeals.

In his complaint plaintiff alleged, in substance, that defendant, in writing signed by him, promised that if plaintiff would execute a warranty deed to certain premises, leaving the name of the grantee blank, so that he, the defendant, could fill in the name of the grantee when he would thereafter sell the premises, and send such deed to a bank at Fort Dodge, Iowa, the bank would pay him the sum of $1,600.00; that plaintiff accepted this offer, and executed and sent the deed as requested, but the purchase price has not been paid. The defendant answered, denying that the deed mentioned was sent on account of any contract of purchase made by him. To this answer a replication was filed, reiterating that the deed was sent to the bank by direction of defendant, under an agreement that he was to pay the purchase price for the land therein described. It appears from the testimony of plaintiff that negotiations with respect to the land in question were first opened between the parties in this state, when plaintiff stated to defendant that he had a place he would sell. At this time plaintiff informed the defendant that $1,600 would buy the land. The defendant made a memorandum of the price, saying: “You will hear from me. ’ ’ Shortly thereafter the parties again met, on a train, at which time plaintiff requested the defendant to stop off and look at the land, but he declined, saying he did not have the time, but stated to the plaintiff: “You will hear from me in a few days. ’ ’

Defendant resided in Iowa, and after his return, there was some correspondence between the plaintiff and himself, the latter writing a letter in which he wanted to know if plaintiff would take $1,200 net, adding: “I think I can make a deal at that figure.” To this plaintiff replied, declining the offer, saying that he would take $1,600 for the land, but no less. To this the defendant answered: “I do not know that I can make a deal at that figure, but will try my best.” Plaintiff replied that he would not take less than $1,600 cash. Later, the defendant wrote plaintiff as follows:

“I want you to make out a warranty deed, signed by yourself and wife, and bring the abstract down to date, and send all to the First National Bank of Fort Dodge, Iowa, and they will send you sixteen hundred dollars, all cash. * * * I want you, in making the deed, to leave the name and amount blank, so I can fill in the name and amount to whom I sell. You will get $1,600, all cash, from the bank, so it won’t matter to you what I get.”

Plaintiff testified that upon receiving this letter he replied, accepting the terms, and shortly thereafter sent tlie deed and abstract to tbe bank, as requested. Tbe deed was never taken up, nor the purchase price paid. Tbe defendant testified that when negotiations were first opened, be informed tbe plaintiff that be did not want to buy tbe land himself, but that be might be able to sell it for him; to which plaintiff answered be would like to have him do so. Upon this record tbe trial court found that tbe defendant never agreed to purchase tbe land from tbe plaintiff, but was merely trying to sell it for him. Tbe contention of counsel for plaintiff is, that tbe testimony establishes that defendant agreed to purchase plaintiff’s lahd, and that plaintiff performed all conditions upon bis part.

We are of tbe opinion that the evidence clearly sustains tbe finding or conclusion of tbe trial court, that tbe defendant never agreed to purchase tbe land on bis own account, but merely undertook to negotiate a sale for a specified sum to be paid tbe plaintiff. Tbe arrangement between tbe parties was never reduced to writing, and their agreement must be deduced from tbe oral testimony and letters which passed between them. There is a conflict in their oral testimony, but this conflict was resolved in favor of tbe defendant by tbe trial court, and cannot be disturbed on review. Besides, we think tbe trial court was right in determining this conflict in favor of tbe defendant, because tbe letters between tbe parties clearly indicate that tbe defendant merely undertook to negotiate a sale of tbe premises to some one who would be willing to pay a price over and above that which plaintiff was to receive. Otherwise, tbe defendant would not have employed tbe expression in bis letter wherein be inquired if plaintiff would take $1,200 net; “I think I can make a deal at that figure”; or have stated, when plaintiff informed him that be would not take less than $1,600, “I do not.know that I can make a deal at that figure, hut will try my best”; nor would he have stated, in his letter which'the plaintiff seems to rely upon as-evidencing the contract which he says he accepted, “I want you, in making the deed, to leave the name and amount blank, so that I can fill in the name and amount to whom I sell. You will get $1,600, all cash, from the hank, so it won’t matter to you what I get.”

From these letters it is evident that a sale depended upon the defendant finding a purchaser at a price above that which plaintiff was to receive. An arrangement between the owner of land and another, to the effect that the latter will pay a specified sum for such land in the event he finds a purchaser, does not render the person merely undertaking to negotiate a sale upon such conditions liable to the owner as purchaser.

During the course of the examination of defendant he was asked: “Did you at any time tell'Mr. Keel that you would purchase his 'land at any price 1 ’ ’ to which he replied: “I did not.”

This was objected to by counsel for plaintiff upon the ground that the witness should not he permitted to state his conclusions. The objection was overruled. Conceding that the objection was good, plaintiff was not prejudiced, because we think it is established beyond all dispute by the letters to which we have referred, that defendant never agreed to purchase the land on his own account. The admission of incompetent testimony which, it affirmatively appears was not prejudicial, is not reversible error.

The judgment of the district court is affirmed.

Affirmed.

Chief Justice Steele and Mr. Justice Campbell concur.  