Averill v. Hart

• Decision Date: 20 April 1926
• Docket Number: (No. 5542)
• Citation: 101 W.Va. 411
• Court: West Virginia Supreme Court
• Parties: W. E. Averill v. Hart & O'Farrell, Partners, Etc.

101 W.Va. 411

W. E. Averill

v.Hart & O'Farrell, Partners, Etc.

(No. 5542)

Supreme Court of Appeals of West Virginia.

Submitted March 23, 1926.

Decided April 20, 1926.

1. Appeal and Error Although Admitting Confidential Com-munication By Defendant to Attorney That Plaintiff Was Entitled to Commissions as Broker May Have Been Error, Where Evidence So Preponderated In Favor of Plaintiff That Such Improper Evidence Would Not Have Changed Verdict, Such Verdict Will Not Be Disturbed.

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. (p. 420.)

(Appeal and Error, 4 C. J. §§ 2949, 2973).

2. Evidence Although Testimony Tending to Show Unaccepted Offer of Compromise is Incompetent, Where Such State- ments Were Made Without Attempt to Make Compromise, They Are Admissible as Declarations Against Interest.

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, (p. 420.)

(Evidence, 22 C. J. §§ 347, 400.)

3. Brokers In Determining Whether Broker Has Earned Com-mission for Procuring Purchaser, it is Enough That Efforts of Broker Were Procuring Cause of Purchase, and They Need Not Necessarily be Sole Cause.

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, (p. 423.)

(Brokers, 9 C. J. §§ 95, 96.)

4. Same If Broker Sets In Motion Machinery by Which Sale is Made, Which Without Break In Its Continuity, Was Procuring Cause of Sale, He is Entitled to Commission, Although He Does Not Conduct All Negotiations; Ordinarily, Whether Broker Has Set In Motion Machinery by Which Sale is Made so As to Entitle Him to Commission is Question of Fact for Jury.

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. (p. 424.)

(Brokers, 9 C. J. §§ 9 7, 129.)

5. Same Expression "Procuring Cause," Used in 'escribing Agent's Activity, Refers to Cause Originating Serf is of Events, Which, Without Break in Continuity, Result in Accomplishment of Object of Employing Agent, Which is Procurement of Purchaser Ready, Willing, and Able to Buy Property on Principal's Terms.

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 prime 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. (p. 423.)

(Brokers, 9 C. J. § 96.)

6. Same-That Owner Voluntarily Consummates Sale and Con-

veys Real Estate is Conclusive Evidence That Purchaser Was Willing and Ready to Buy at Satisfactory Price.

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. (p. 423.)

(Brokers, 9 C. J. § 87.)

7. Same Trial 'Procuring Cause" of Sale and "Proximate

Cause" Are Substantially, if Not Quite, Same in Meaning; Even if There is Difference in Meaning Between 'Procuring Cause" and "Proximate Cause," Omissio. yf hatter Term in Court's Charge to Jury Would Nat I r Error, in View of Fact That Another Instruction Sufficiently statea Issue (Code, c. 131, § 22).

"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. (p. 423.)

(Procuring Cause, 32 Cyc. p. 574; Trial, 38 Cyc. p. 1785; Proximate Cause, 32 Cyc. p. 745.)

(Note: Parenthetical references by Editors, C. J.-Cyc. Not part of syllabi.)

Error to Circuit Court, Greenbrier County.

Assumpsit by W. E. Averill against Hart & O'Parrell, partners, to recover commissions. Judgment for the plaintiff, and defendants bring error.

Affirmed.

M. L. Jarrett and. Dice & Easley, for plaintiffs in error. Miller & Garnett, and Price & McWhorter, for defendant in error.

Woods, Judge:

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% 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, Pennsylvania, was engaged in some timber operations in Greenbrier County, West Virginia, 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 E. 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 negotiations 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 thirty days at a cash price of $60,000.00, for which they paid $500.00, 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 thirty day, 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 $40,000.00 in bonds and the balance of $20,000.00 in cash, and give sixty days in which to close the sale, offering $500.00 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 $5.00 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 $30,000.00 should be made sixty days after the draft to be drawn therefor with the deed, abstract of title and tax ticket attached thereto, saying: "We assume that your offer is to accept pay for, the balance of purchase price by paying to you a certain amount on each thousand feet of lumber as it is manufactured until it is fully paid. * * * Make the deed to 'Little Creek Lumber Company', also draft and other papers attached and forwarded to 'Citizens National Bank' of Corry, Pennsylvania, which upon its arrival we will carefully look over and if everything is found to be alright which we assume may be the case, we will then prepare to honor draft when it becomes due. * * * We would be pleased to have your proposal on the stumpage basis in order that we may study it over; this we trust will be reasonable and not too burdensome for us to comply with." To this letter Hart replied on September 15th, saying: "Now this thing must be closed. * * * We are going to allow you thirty additional days and if you have to have a week longer we will allow it. * * * Now we must have $10.00 per M ft. * * * I think the only sensible thing to do is for you to come down and have your lawyer to go into it in detail.'' Brown replied to this letter, September 19th: "We have no objection to any of the changes you have suggested in your letter that I can see at this time. I am very busy getting up a prospectus...