{ "id": 1484989, "name": "McMillan v. Dunlap", "name_abbreviation": "McMillan v. Dunlap", "decision_date": "1943-12-06", "docket_number": "4-7166", "first_page": "434", "last_page": "444", "citations": [ { "type": "official", "cite": "206 Ark. 434" }, { "type": "parallel", "cite": "175 S.W.2d 987" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "67 S. W. 2d 730", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "188 Ark. 792", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428444 ], "opinion_index": 0, "case_paths": [ "/ark/188/0792-01" ] }, { "cite": "127 S. W. 2d 138", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8725414 ], "opinion_index": 0, "case_paths": [ "/ark/197/1053-01" ] }, { "cite": "197 Ark. 1058", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 930, "char_count": 21220, "ocr_confidence": 0.491, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34594681002637606 }, "sha256": "4e5343a05dd8798c9c9ec20d722068aac7b97af807981d945b99d41bd2087abd", "simhash": "1:13d0e3910e5ce026", "word_count": 3708 }, "last_updated": "2023-07-14T15:20:24.664732+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McMillan v. Dunlap." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nD. W. McMillan and his son, H. W., are practicing attorneys at Ai'kadelphia. They are also large owners of land, and from time to time buy and sell.\nHoward Dunlap is a barber and has resided at Malvern for eighteen years. Duncan Cothern, a resident of Dierks, is District Forester at Malvern, employed by the State Commission. Tom Hopson, a woods foreman for Dierks Lumber and Coal Company, is in charge of buying timber for the 'Company\u2019s Mountain Pine mill. Fred J. Leeper, a resident of Hot Springs, buys and sells timber. For thirty years he was employed by Dierks Lumber and Coal Company. Allen Bryant, a State game warden, resides at Magnet Cove.\nThe appeal is from a judgment against D. W. McMillan for $2,160, in favor of Dunlap and Cothern. They alleged a written contract based upon a McMillan letter of April 16,1941, wherein Dunlap, the addressee, was told that the McMillans owned about 14,000 acres in Garland county, an equal acreage in Pulaski and Saline counties, and 3,800 acres in Perry county. In this letter it was said:\n\u201cIf you will introduce us to tlie purchaser, or the broker or the' agent of the purchaser and we finally make a sale to the purchaser or through the broker to whom you introduce us, we would be willing to pay you and the broker together at the rate of twenty-five cents an' acre for any land you sold through you or your broker. \u2019 \u2019\nIt was further stated by the McMillans that they would be glad to meet any prospect Dunlap might have and would \u201ctry to work out a trade with them.\u201d\nDunlap testified that he first met the McMillans in connection with an option he had procured on 8,000 acres belonging to Moline Timber Company. The McMillans expressed a desire to sell the lands involved in this, controversy, lying in G-arland county. Dunlap did not then know of a possible purchaser, but later learned that Cothern had a \u201cprospect.\u201d Cothern, however, refused to disclose whom his client was but suggested that Dunlap procure a contract; whereupon Dunlap said he informed the\" McMillans \u201cabout this\u201d and they delivered to him the letter of April 16. It was exhibited to Cothern, who proposed a meeting. A few days later the four met at Hot Springs and from there went to Mountain Pine where the Dierks Company had offices. Dunlap did not disclose his destination to the McMillans until the car in which they were driving left the Mt. Ida road. At the Company\u2019s office (Cothern alone went into the building) it was ascertained that Hopson was absent and would not return until \u201caround three or four or five o\u2019clock.\u201d The callers then went to a nearby grove and waited an hour or more. Dunlap went to the commissary for cold drinks. Upon returning Cothern told him the McMillans did not want to wait any longer. Dunlap says he \u201csuggested\u201d that they remain a little longer, and when Hopson returned he would have introduced the McMillans to him. \u201cIt was my understanding,\u201d said the witness, \u201cthat to earn this twenty-five cents per acre I was to introduce the McMillans to the man who later bought \u00e1nd to keep my hands off after that. \u2019 \u2019 Dunlap swore that he did not have authority to quote prices. His sole purpose was to introduce the prospect.\nAlthough the date of this meeting is not mentioned by the witness, it must have been after April 19,1941, for on the nineteenth D. W. McMillan wrote Dunlap:\n\u201cWe have given you letter which will protect you if your man buys. If he will not come [to Arkadelphia] we suggest you arrange for a conference at Hot Springs and we will go over there to see him. \u2019 \u2019\nIt is argued by appellants that when sale was made to Dierks nearly a year later they did not take advantage of o\u2018r act upon information procured from either Dunla|i or Cothern. On the contrary, they were approached by Leeper, to whom a commission of $1,400 was paid. Leeper, during the late weeks of 1940, procured from Malvern Lumber Company an option on the property. He then' talked with Hopson in an effort to sell to Dierks at $2.50 per acre. The offer was declined; whereupon Leeper talked with D. W. McMillan. While the option was in force Leeper mentioned to McMillan that Dierks was a \u201cprospect.\u201d Leeper also stated, while trying to sell to the McMillans, that if they would buy, he would in turn sell the property to the Dierks Company. On cross-examination Leeper testified: \u201cAt the time I had the option and offered [this land] to Dierks, they wanted to deal directly with the man who owned it. I told them they wouldn\u2019t get it, and then [I] sold it to the McMillans. I was a real estate broker in 1941 and 1942.\u201d\nA second defense is that neither Dunlap nor Ootliern was a licensed real estate broker: hence, under \u00a7\u00a7 12476 to 12486 of Pope\u2019s Digest, recovery is prohibited.\nDid Dunlap\u2019s activities bring\u2019 him within the interdictions of the brokerage Act?\nOn cross-examination letters written, by Dunlap were admitted in connection with his testimony that \u201cthe Mo-line Timber Company option was among the first I wanted to sell. \u2019 \u2019 The witness then explained that he was not trying to buy on his own behalf, \u201cbecause I was \u2018broke\u2019 and couldn\u2019t buy, [but] I was not attempting to sell any real estate.\u201d The activating purpose, said he, was to obtain options on realty, or to cause buyer and seller to get together \u201cso I could get a commission out of it.\u201d In a letter of May 20, 1941, to one of the McMillans, Dunlap mentioned \u201ca second prospect,\u201d and then wrote: \u201cI think you can deal with him more easily by taking the lead. If you wish, and if I can help, of course I\u2019ll be glad to.\u201d\nA communication of April 17, 1941, addressed to McMillan and McMillan, mentioned \u201ca very contentious fellow\u201d who would not go to Arkadelphia, but who asked, [the writer] to get the lowest price on 14,000 acres the McMillans bought from Malvern Lumber Company; also On 10,000 acres around Caney: \u2014 \u201c. . . said that he was sure, if price was anything like right, he could handle both tracts.\u201d And in conclusion: \u201cHe said to let him-know if you would name a price per acre on both tracts. He is evidently figuring on making some more on it, but we can\u2019t worry about that if we get ours.\u201d Beneath the signature was an undesignated postscript promising to \u201ckeep confidential any price you name, if you name it.\u201d\nAn undated letter written by Dunlap to tlie McMillans mentioned certain tracts on \u201cthe Roland estate\u201d for which $3 per acre was asked, \u201cbut am sure you can buy cheaper.\u201d Information was given that described lands owned by J. K. Hall were to be sold at the court house May 19 under sealed bids, but \u201cI talked to their representative and he said it was possible to sell bn \u2018outright\u2019 price.\u201d Descriptions were enclosed with the comment: \u201cIf interested look them over and let me hear. I\u2019ll either work through you for my commission or submit a bid to them of your price, less my commission.\u201d Other lands were mentioned \u2014 three separate holdings.\nDunlap admitted having contracted with Arthur C. Cearley, of Sheridan. This language appears in the writing:\n\u201c. . . in the event either or both parities shall sell, or cause to be sold, the [fourteen thousand acres] . . . which Dunlap has contract from McMillan to sell, or caused to be sold for McMillan and is to receive for Ms services in the sale of said lands the sum of twenty-five cents per acre. . . .\u201d\nThe contract with Cearley, said Dunlap, covered the subject-matter of this suit; and, he added: \u201cI had a contract with Cothern as to Dierks Lumber and Coal Company, and with Cearley as to Long Bell Lumber Company. I- was trying to get some one to help me sell that land to earn that two bits an acre. \u201d\n\u2022 Another letter (the only date being \u201cSaturday\u201d) mentions 8,000 acres and contains the statement: \u201cI contracted with [the McMillans] to help me in the sale.\u201d There was a reference to Bill Murray, \u201canother real estate man.\u201d In his explanation Dunlap said: \u201cI was looking for some one to sell that 14,000 acres to when I wrote the other letter dated Saturday. I was not going to have anything to do with the price.\u201d He then testified: \u201cI set the price [at $5.50 per acre] because [McMillan] had made Long Bell a price of $5.50 and I suspected he would take that sum \u2014 I know he would take it. \u2019 \u2019\nStill another \u201cSaturday\u201d letter, addressed to D. \"W. McMillan, speaks of having received an inquiry regarding 3,600 acres in Dallas county: \u2014 \u201cHe wants to know if I could sell part or all of it, and the price. \u2019 \u2019 Other statements in the letter related to the writer\u2019s-interest in realty.\nAn advertisement published in the Arkansas Gazette of June 29, 1941, was: \u201cEight thousand acres of timber land for sale. Attractive price in block. Howard, Little River, and Sevier counties. Also 3,600 acres in Dallas county. Howard Dunlap, Malvern, Arkansas.\u201d\nCothern testified regarding his trip to Mountain Pine with Dunlap and the McMillans: \u2014 -\u201cI was told by \u2018Bruce\u2019 Scott that he and Dunlap had a tract they wanted to sell. Later Dunlap told me he could get twenty-five cents per acre if he could sell this land for the McMillans.- While they were waiting Cothern remarked that Hopson had said the land was probably worth $3.50 per acre: \u2014 \u201cBill McMillan then said, \u2018Let\u2019s go! I can\u2019t wait. We can\u2019t sell any land for that price. There is no use wasting our time in waiting for [Hopson].\u2019 \u201d\nCothern was very positive in asserting that he did not carry on any negotiations, nor did he make any offer to sell on behalf of the McMillans, or \u201chave anything to do with the negotiations.\u201d He was merely to get \u201cpart of the brokerage commission\u201d for participating in the introductions.\nH. W. McMillan, testifying, said he first met Dunlap in February, 1941. Dunlap came to his office for assistance in obtaining an FHA loan. He did not know Cothern was associated with Dunlap in the Dierks negotiations until the trip from Hot Springs to Mountain Pine was made. Several conferences between the McMillans and Dunlap occurred in Arkadelphia. On one occasion Dunlap proposed to sell 8,600 acres in Sevier and Howard counties. He mentioned various real estate matters and said he was advertising extensively in Eastern newspapers ; also in Chicago and St. Louis, and in the Arkansas Grazette. Dunlap asserted that he had contacts beyond the State, \u201cprospects we probably would not know anything about, and he would like to have an opportunity to sell our lands.\u201d.\nAdverting to conversations while waiting near the Dierks office, McMillan testified Cothern told him he thought they could get $3, or $3.50, for the land: \u2014 \u201cHe felt sure we would get $3, and [Cothern thought] that was a very good price. . . . The long and short of it was we told [Dunlap and Cothern] we were not going to sell our land .for $3- or $3.50, .and that to talk with Hopson on any such basis would be an indication we might consider that kind of a proposition. . . . [At that time] the mill had quit running and people in the office were fixing to .close up. We got in the car, [went back to Hot Springs], let them out, came on home \u2014 and I forgot about the matter.\u201d\nMcMillan denied that lie had contacted Hopson or anyone connected with Dierks. Deeper, said the witness, had consistently asserted the land would be bought by Dierks. The McMillans took no steps to sell to Dierks, believing that any chance to dispose of the property at $5 or more per acre had been spoiled by the quotation of $3 or $3.50 they thought had been made by Cothern.\n\u201cSome months later,\u201d according to the witness, Hop-son told the .elder McMillan that Mr. Dierks wanted to sec him about the land, \u201cand Dad went over.\u201d\nD. W. McMillan\u2019s testimony was along the same line as that of his son, except more in detail.\nSubstance of Hopson\u2019s testimony was that be had charge of buying timber for Dierks\u2019 Mountain Pine mill. Leeper offered Dierks the 14,000 acre tract when he had an option from Malvern Lumber Company. The option price was $2. Leeper wanted $2.50. The Company declined. Leeper later told Hopson a sale had been made to the McMillans. Frequently, thereafter, Leeper would insist that Dierks should buy. About a month before the McMillans contracted with Dierks, Leeper supplied Dierks a plat and said, \u201cThey are fixing to sell to someone else, and if you fellows are interested you had better get after it.\u201d The witness said that shortly thereafter lie drove Mr. Dierks over the property. When they returned to Hot Springs Dierks instructed him to call McMillan. This was done, and the following day. the contract was made. The first time Hopson saw Dunlap was in the spring of 1942, following sale by the McMillans. The witness did not remember that Cothern even mentioned the land until after it had been sold to Dierks. There was the assertion that \u201cNeither Dunlap nor Cothern had anything whatever to do with the sale.\u201d\nAllen Bryant testified that during the latter part of April, 1941, he went to Mountain Pine with Dunlap and Cothern. Cothern spoke to Hopson, mentioning that \u201cthere are parties\u201d who then owned 14,000 acres formerly held by Malvern Lumber Company. Hopson is alleged to have said that Dierks did not want it \u201cabout a year ago, but wants it now. ... I would like to sec the owners and talk with them, and buy th\u00e9 land if it isn\u2019t too high.\u201d Hopson replied that he could not see them until two days later. He further testified that in the spring of 1942 he again talked with Hopson and asked if Dierks had not bought the McMillan land. Hopson \u25a0 admitted this w.as true and stated that a commission was paid Leeper. Cothern is alleged to h\u00e1ve said to Hopson, \u201cDidn\u2019t you know I had a part in that by me telling you' about it f \u201d Hopson replied that he had forgotten about it, but did recall the transaction when reminded of it by Cothern.\nOther Facts \u2014 and Opinion.\nFred Dierks, one of the owners of the lumber and coal company bearing his name, went from his Kansas City home to Hot Springs. He was in Arkansas in February, 1942. Hopson drove with him through some of the McMillan lands. Dierks asked Hopson who owned the property. Hopson\u2019s testimony is to the effect that his information as to ownership came from Deeper, and from facts independently ascertained. He is partially contradicted by Bryant, who says Hopson admitted Cothern had informed him the McMillans were willing to sell. But the case does not turn upon this question of fact.\nDunlap insists his only duty was the simple function of introducing seller and buyer \u2014 that is, he was to \u201cbring them together\u201d and make known to e.ach the other\u2019s state of mind in respect of the subject-matter. It is not necessary to determine whether, with facts admittedly as appellees argue them, recovery is prohibited by \u00a7 12477 of the Digest. Dunlap\u2019s activities, as reflected by his letters and undisputed statements, involved more than an introduction of willing clients. Likewise, his contract provided for a commission on land Dunlap sold, or on any sold through his broker.\nThere appears to be an unnecessary \u201cyou\u201d in the second paragraph of McMillan\u2019s proposal. It reads: \u201c. . . we would be willing to pay you and the broker together at the rate of twenty-five cents an acre for any land you, sold through you or your broker.\u201d if we eliminate this seemingly superfluous word, the case is not strengthened for appellees. The obligation would then be to pay on any land sold through Dunlap or his broker. In the instant case Cothern cannot be the broker; for, like Dunlap, he is unlicensed, and an unlicensed broker is within the statute\u2019s ban. In Nelson v. Stolz, 197 Ark. 1058, 127 S. W. 2d 138, recovery was denied one who was not licensed at the time he procured purchasers who entered into an enforcible contract.\nIf it be conceded that Bryant\u2019s testimony injected a factual question, and that it was admissible as going to tlie credibility of Hopson, there is still lacking evidence of a substantial nature that Dierks Lumber and Coal Company and the McMillans were \u201cintroduced,\u201d or \u201cbrought together,\u201d through Dunlap,- nor is there testimony upon which to predicate a liability to Cothern, whose interest was unknown to the McMillans. The trip from Hot Springs to Mountain Pine was void of any result other than disclosure to the McMillans that Dunlap was seeking to effectuate a sale to Dierks. The expected meeting with Hopson did not take place. What Dunlap and Cothern may have said to Hopson at a later date, or on subsequent occasions, is speculative. Give full credit to Bryant\u2019s testimony: still, Dierks and the McMillans were not introduced within meaning of the offer of April 16: an offer requiring payment to Dunlap if land should be sold through him or his broker. It is our view that the contract (which we are not at liberty to vary) contemplated affirmative action by Dunlap in addition to the formality of an introduction. Support for this construction is found in Dunlap\u2019s contract with Cearley, where the statement is that the commission is payable for services rendered \u201cin the sale of said lands.\u201d Again it is recited \u2022that in the event either Dunlap or Cearley \u201cshall sell, or cause [the McMillan lands] to be sold,\u201d Dunlap is to be compensated.\nCertainly Dunlap made contracts, held himself out as a real estate man, took options, quoted prices, advertised, and in other respects invited interested parties to utilize his services. He offered to make contacts, independent of introductions. It was such activities as these that the Legislature sought to have supervised, and to that end the Beal Estate Commission was created, its duties defined, and restrictions were imposed upon those who would hold themselves out as realtors, agents, or brokers.\nThe judgment is reversed and the cause is dismissed.\nThe letter concluded as follows: \u201cWe of course will not give an exclusive option to anyone as we have other prospects we will work with and if we make a sale to anyone except through the broker to whom you introduce us, we would not expect to pay either you or him any commission. Of course, if the broker gets a live prospect ready to go on the land and spend some money in having it examined, we naturally would give them a reasonable time to make a reasonable inspection and if they want to make a careful cruise on it for a reasonable payment of earnest money, we would give them a reasonable time to make a careful cruise of the property. The- land business is very active at present and we would not want to and would not agree to tie up our land exclusively to anyone. We are ready to go anywhere you suggest and meet anyone you suggest that you feel like is in the market for lands and will do what we can to cooperate with you in making a sale to your broker or his client.\u201d\nApparently this trip was made in a- car belonging to the McMillans.\nIt is suggested by appellants that the Hot Springs meeting and trip to Mt. Ida probably occurred thirty days after April 16, 1941.-\nContract for the sale, according to the testimony of H. W. McMillan, was dated February 7, 1942.\nSection 12477 of the Digest applies to \u201c. . . any person '. . . who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, . . . auctions or offers to auction, or negotiate the purchase or sale or exchange of real estate . . . for others, as a whole or partial vocation. . . . The term . . . shall also include any person . . . employed by the owner . . . of real estate, at a stated salary or commission, to sell such real estate, and who shall sell or exchange or offer or attempt to negotiate the sale. . . . One act for a compensation or valuable consideration . . . shall constitute the one performing it a real estate broker . . . within the meaning'of this Act. ... No recovery may be had by any broker or salesman in any court of this State on a suit to collect a commission due him unless he is licensed under the provisions of this Act, and unless such fact is stated in his complaint.\u201d\nPunctuation supplied.\nReference by Dunlap to Long Bell Lumber Company seems to have been in connection with his plan to have Cearley arrange a meeting between the McMillans and a representative of Long Bell.\nStatements by this witness do not differ materially from those made by Dunlap, except that he thought they arrived at the Dierks office about 2:30 and left at four o\u2019clock. .\nIn testifying, McMillan said that Dunlap \u201c. . . told us he had contacted John G. Lonsdale, one of the trustees of Kansas City-Southern Railroad, . . . with the idea of selling -Mr. Lonsdale our lands.\u201d [The meeting is alleged to have occurred at Park Hotel.] ,. . . \u201cHe had some letters and contacts with some people in New Hampshire by the name of Andrews. He was also dealing with Moline Timber Company.\u201d\nThe sal\u00e9 to Dierks in 1942 was at $5 per acre. Cothern denied having mentioned a price to Hopson or anyone connected with Dierks. [The McMillans paid $2 for the land; but, after taxes and other expenses were added, the cost was \u201cabout $3.25.\u201d]\nItalics supplied.\nSee Birnbach v. Kirspel, 188 Ark. 792, 67 S. W. 2d 730.", "type": "majority", "author": "Griffin Smith, Chief Justice." } ], "attorneys": [ "F. D. Gosa and Martin, Woott.on & Martin, for appellant.", "II. B. Means and Bridges, Bridges, Young & Gregory, for appellee." ], "corrections": "", "head_matter": "McMillan v. Dunlap.\n4-7166\n175 S. W. 2d 987\nOpinion delivered December 6, 1943.\nF. D. Gosa and Martin, Woott.on & Martin, for appellant.\nII. B. Means and Bridges, Bridges, Young & Gregory, for appellee." }, "file_name": "0434-01", "first_page_order": 454, "last_page_order": 464 }