Atlas Realty Co. v. Monroe
| Decision Date | 03 June 1935 |
| Docket Number | 8127. |
| Citation | 180 S.E. 261,116 W.Va. 337 |
| Parties | ATLAS REALTY CO. v. MONROE et al. |
| Court | West Virginia Supreme Court |
Submitted May 1, 1935.
Syllabus by the Court.
The "orderly and connected charge" of the court to the jury permitted by Code 1931, 56-6-19, should state the law governing the case. The charge should contain so much of the substance of the instructions tendered as may be reasonably necessary to a proper statement of the law, employing the language of the instructions if practicable.
Error to Circuit Court, Wood County.
Action by the Atlas Realty Company against M. W. Monroe and others. Judgment for plaintiff, and defendants bring error.
Judgment reversed, and new trial awarded.
McDougle & Hoff, of Parkersburg, for plaintiffs in error.
J. J Yankiss, of Parkersburg, for defendant in error.
This action involves the right of a real estate company to recover commissions on a sale of property. From a judgment in favor of plaintiff, the defendants secured a writ of error.
One H L. Ferguson informed an agent of the plaintiff that he was in the market for a suburban home and would pay as high as $6,000 cash. The agent procured an initial price of $11,000 from defendant M. W. Monroe on his home, which is the property in question. The agent introduced Ferguson and his wife to the defendants and showed them over the Monroe home. The property suited the Fergusons, but not the price. Then over a period of months active negotiations were conducted by the agent between the Fergusons and the defendants, during which the price of the property was reduced to $7,800 and the offer increased to $6,500. At this point Monroe asked the agent what commission would be charged in case of sale, and was informed the commission would be 5 per cent. of the sale price. Monroe said that was too high. The agent offered to charge a flat rate of $300. Monroe replied he would not pay that much. The agent then informed him he would be expected to pay 5 per cent. commission if the property was sold to the Fergusons. Monroe answered that dealings between him and the agent were ended. A short time afterwards Monroe agreed directly with Ferguson to take $6,800 cash. The deed was made to Ferguson's sister, Mrs Kathryn Fox, who later conveyed to the Fergusons.
On the theory that the plaintiff never produced a purchaser willing to pay any of the several prices submitted to it by Monroe, I am very doubtful of plaintiff's legal right to maintain this action. My brethren take the view, however, that whether or not a brokerage contract, express or implied, was established between plaintiff and defendants, and, if so, whether or not such contract was terminated by Monroe in good faith, are jury questions.
A number of instructions offered by each party, respectively (plaintiff 16, and defendant 15), were rejected by the court and in lieu thereof the court itself prepared and gave a charge to the jury. This charge was authorized by Code 1931, 56-6-19, but it contains some expressions which may have misled the jury. After stating that there was evidence tending to show that plaintiff undertook on behalf of defendants to sell their property at $11,000, the charge proceeds: "Pursuant to this arrangement the broker produced as prospective purchasers Mr. and Mrs. Ferguson." The phrase "pursuant to this arrangement" would seem to imply that the...
To continue reading
Request your trial