Averill v. Hart & O'Farrell
| Decision Date | 20 April 1926 |
| Docket Number | 5542. |
| Citation | 132 S.E. 870,101 W.Va. 411 |
| Parties | AVERILL v. HART & O'FARRELL. |
| Court | West Virginia Supreme Court |
Submitted March 23, 1926.
Syllabus by the Court.
Though it may be error to admit a confidential communication of defendant to his attorney to the effect that plaintiff was entitled to commissions in a suit by the latter against the former to recover commissions, and then later to strike out that evidence and instruct the jury to disregard it (the damaging evidence having gone to the jury over objection) yet, where, as in this case, the evidence so preponderates in favor of plaintiff that the appellate court cannot clearly see that such improper evidence would have changed the verdict, the same will not be disturbed.
While testimony offered to show an unaccepted offer of compromise is incompetent and inadmissible, where it appears that such statements were made without any attempt to effect any compromise between the parties, such testimony is admissible under the well-established rule that the declaration of parties to the record against interest may be shown in evidence.
In determining whether a broker has earned a commission for procuring a purchaser, it is enough that the efforts of the broker are the procuring cause of the purchase, but it need not be the sole cause.
The broker is entitled to his commission, although he may not have conducted all of the negotiations leading to the sale it being sufficient if he set in motion the machinery by which the work was done, which without break in its continuity was the procuring cause of the sale. Whether or not this was the case, ordinarily, is a question of fact for the jury.
The expression "procuring cause," as used in the books refers to the cause originating a series of events, which, without break in their continuity, result in the accomplishment of the prima object of the employment of the agent, which, as stated, is the procurement of a purchaser ready, willing, and able to buy the real estate on the principal's terms.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Procuring Cause.]
When the owner voluntarily consummates the sale and conveys the real estate, this is conclusive evidence that the price was satisfactory, and that the purchaser was willing and ready to buy.
"Procuring cause" and "approximate cause" are substantially, if not quite, the same in meaning. But, admitting a shade of difference, it would be too much of a refinement to hold that the omission of the latter term in the court's charge to the jury would be error.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]
Additional Syllabus by Editorial Staff.
"Proximate cause" is that which in natural and continual sequence, unbroken by any new cause, produces event, and without which event would not have occurred.
Error to Circuit Court, Greenbrier County.
Assumpsit by W. E. Averill against Hart & O'Farrell, partners, to recover commissions. Judgment for the plaintiff, and defendants bring error. Affirmed.
M. L. Jarrett and Dice & Easley, all of Lewisburg, for plaintiffs in error
Miller & Garnett, and Price & McWhorter, all of Lewisburg, for defendant in error.
This is an action in assumpsit to recover commissions for making sale of a certain boundary of timber, containing 2,000 to 3,400 acres, located in Greenbrier county. On the 24th day of August, 1924, the defendants entered into an agreement in writing with the plaintiff by the terms of which the plaintiff was employed to make sale of said timber owned by them, in which it was agreed that the plaintiff should have for his services in connection with such sale the sum of 10 per cent. of the selling price; and, further, it was agreed that, pending negotiations with any prospective purchaser, solicited or brought on the ground by the plaintiff, the defendants should make sale of the said timber direct, the plaintiff should be entitled to the same compensation as if the sale had been conducted solely by him.
The plaintiff, a citizen of Corry, Pa., was engaged in some timber operations in Greenbrier county, W.Va., close to the timber in question, and the home of the defendant Hart. Earlier in the same year the plaintiff had an oral agreement with the defendants for the sale of the same timber on a commission, and to this end he had not only communicated with many of his acquaintances in Pennsylvania, but had made frequent trips to that state, on the quest of prospective purchasers, with the result that W. B. Shaffer and Earl R. Brown, of Corry, and F. P. Obert, of Pittsfield, all of Pennsylvania, came to White Sulphur Springs to examine the property. It was at this time that the plaintiff requested and obtained the execution of the written contract hereinbefore mentioned. Shaffer, Brown, and Obert were introduced to defendant Hart, as prospective purchasers, by the plaintiff, and, after making examination of the timber in company with this plaintiff and defendant Hart, they returned to White Sulphur Springs, and began negotiating with Mr. Hart for the purchase of it. Not being financially able to buy the timber within themselves, a written option was taken on the same for 30 days at a cash price of $60,000, for which they paid $500, to afford them an opportunity to return to Pennsylvania and interest enough outside capital to close the deal. This fact was known to the owners of the timber. Finding it impossible to interest sufficient capital within the 30 days, Brown wrote Hart on September 8, 1924, as follows:
"I feel as certain as can be that if we only have just a little time we can get this closed up which is our intentions to do so if possible."
On the next day he wrote Hart inquiring whether he would accept $40,000 in bonds and the balance of $20,000 in cash, and give 60 days in which to close the sale, offering $500 additional money for the extension. He stated that he and his associates "would be willing to enter into an agreement to make payments on these bonds before any issue became due by allowing $5 minimum per thousand feet of lumber," adding:
"We expect to have Mr. Averill associated with us as he has signified his intention of going in with us."
Hart, in answer to these communications, wired Brown on September 11, 1924:
"Will accept thirty thousand cash balance stumpage we fix amount must have your check before we go any further will not accept your bonds proposition must have check and answer at once."
Brown acknowledged this telegram in a letter of September 12, 1924, in which he assumed that the cash payment of $30,000 should be made 60 days after the draft to be drawn therefor, with the deed, abstract of title, and tax ticket attached thereto, saying:
To this letter Hart replied on September 15th, saying:
Brown replied to this letter September 19th:
On October 3d Brown wrote to Hart that it might "be several weeks yet before we will have our financing pledged and forthcoming and ready to go down to the tract to arrange all matters we will want to attend to." Hart replied to this on October 6th, saying:
October 16th Hart sent the following written notice to Brown, Shaffer, and Obert:
"Please take notice that after the 26th day of this month your sixty days will have expired, being thirty days given you on the first agreement and thirty days after that date" (evidently overlooking the fact that he had given him an additional seven days.)
Throughout these negotiations both Averill and Shaffer were in touch with Hart; Averill being all the while in the community in which Hart lived. During the time of the extension, Brown had...
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