Fergus County Democrat. [volume] (Lewistown, Mont.) 1904-1919, 1912-10-15
JUDGMENT OF DISTRICT COURT
REVERSED AND NEW TRIAL
is GRANTED.
It INVOLVES LARGE sum
Amount Claimed by John Shober, Jr.,
of Helena, for His Service In Con-
nection With Sale Of Moule Ranch
Lands-PIaintiff Was Non-Suited In
the District Court.

The case OF John Shober, Jr, of Hell
!. Moule, which was tried here early
In the year, Shober being non-suited,
has been remanded for new trial by
the state supreme court. Judge Sid
ney Sanner, OF Miles City, heard the
case, Judge Cheadle being disqualified.
The action is an important one, in
volving large sum claimed by Sho-
ber as commission In connection with
the sale Of the Moule ranch lands, and
there Is considerable interest in 1t
locally. The Helena Independent says:
Through the decision of the supreme
court handed down yesterday, J. H.
Shober, jr.. real estate merchant Of
this city, will be given another chance
to prove in the Fergus county court
that he is entitled to commission
Of $4,000 for effecting the sale Of the
Moule ranch in that county to the
Giltiman-Penwell Ranch company, OF
Helena
In July, 1907, Philip !. Moule listed
for sale by a written agreement with
j. II. Shober, jr., his ranch OF some
$4,000 acres, lying near Bercail, Mont.
The price agreed upon was SIS per
acre. Shober was to have all that he
could make over this price. He had
a prospectus printed and went to con-
siderable expense to advertise the
property.
He Interested one Giltinan in the
proposition and tried to find an east
ern market for the land. In this he
| was unsuccessful, but In the spring OF
1908 deal was consummated by Gilti-
nan whereby the ranch stock and
property was sold to the corporation.
In this deal Shober took no part and
his demand for commission was re-
fused. The land was sold for Sc per
acre. which was the price which Sho
ber had demanded of Giltinan.
In the suit brought by Shober
against the administrator OF the es-
tate of P. l. Moule, deceased, the evi-
dence of the selling price Of the land
and other testimony was ruled out and
motion for non.suit was granted the
| defendant
From this order and the order deny
| $50 ~ AASW esAuib uu dppCaA WdS NtheIl
| by the plaintiff. In reversing the de-
cision OF the lower court and remand
Ing the case for a new trial, the su-
preme court said, through Judge
Brantly, who wrote the opinion:
THE decisions generally agree that
where the agent is employed at q stip-
ulated commission to procure a pur-
! chaser upon terms named, the seller
reserving the right to consummate
the deal, the agent has fully dis
charged his undertaking when he has
procured a purchaser. and II then the
seller avails himself Of the service so
rendered and negotiates a sale, though
upon terms and conditions different
from those named to the agent, the
agent may recover the commission
agreed upon In the contract, whether
1t be fixed sum, or a commission at
a percentage of the selling price
THE agent may, of course, agree
that he shall not receive any compen-
sation unless the sale is made within
specified time, or at the price and
upon the conditions named by the
seller. He will then be held to his
agreement. Under the rule estab-
lished by the authorities cited, the
plaintiff must be deemed to have fully
discharged his obligation when he fur
nished purchaser at the price per
acre fixed In the contract, or any
price which Moule was willing to ac-
cept."