Bechtel Properties, Inc. v. Blanken

• Decision Date: 08 February 1962
• Docket Number: No. 16491.,16491.
• Citation: 299 F.2d 928,112 US App. DC 97
• Parties: BECHTEL PROPERTIES, INC., Appellant, v. Samuel BLANKEN, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 US App. DC 97, 299 F.2d 928 (1962)

BECHTEL PROPERTIES, INC., Appellant, v. Samuel BLANKEN, Appellee.

No. 16491.

United States Court of Appeals District of Columbia Circuit.

Argued January 10, 1962.

Decided February 8, 1962.

Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Friedlander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief, for appellant.

Mr. Ewing Laporte, Washington, D. C., for appellee.

Before DANAHER, BASTIAN, and BURGER, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment of the District Court entered upon a directed verdict in favor of plaintiff agent-appellee in a suit to recover a real estate broker's commission. The opinion of the trial court is reported in 194 F.Supp. 638 (1961).

Certain material facts are undisputed: Plaintiff was employed by defendant seller-appellant to sell an apartment house in the District of Columbia. Plaintiff secured a purchaser and the contract of sale was duly executed by the purchaser and the defendant. The contract price was $140,000, the purchaser agreeing to pay $15,000 in cash (of which his deposit of $1500 was to be a part), the purchaser to take the property subject to deeds of trust of approximately $99,000 and to pay the balance of the purchase price by deferred purchase money deed of trust. The agent, by supplemental agreement, was to receive commission in the amount of $7000 from the seller, payable $3000 in cash and $4000 in the form of a third deed of trust note on the property. At the time of settlement, the purchaser presented to the title company a certified check for the balance of the cash payment ($13,500). Disputes between the purchaser and the seller developed, and the transaction was not actually consummated.

Ultimately, the defendant resold the property for $135,000, and received $40,000 in cash instead of $15,000. There is no evidence that the defendant either declared the original deposit forfeited until long after the date for closing had expired (see infra) or took any steps to secure specific performance or damages, although the contract provided:

"If the purchaser shall fail to make full settlement the deposit herein provided for may be forfeited at the option of the seller, in which event the purchaser shall be relieved from further liability hereunder; or without forfeiting the deposit the seller may avail himself of any legal or equitable rights and remedies which he may have under this contract."

The contract further provided:

"The entire deposit shall be held by Sam Blanken & Co. until settlement hereunder is made or until the deposit is forfeited. In the event of the forfeiture of the deposit, the Agent shall retain one-half thereof as a compensation for his services and shall pay to the seller the remaining one-half of the forfeited deposit."

The trial judge stated the question as follows:

"The question presented here is whether the plaintiff is entitled to receive his commission in the light of the fact that the purchaser did not perform the contract and that it was abandoned by the parties although not formally rescinded."

It is true that there is a strong line of authority, which the trial judge held correct, to the effect that when an agent procures a purchaser on terms acceptable to the seller, and the latter accepts the purchaser, then the agent is entitled to his commission, whether or not the purchaser is responsible and whether or not the purchaser settles. We do not need to pass on this question. There are decisions both pro and con on this point.¹ It may be argued in the one instance that, when the seller accepts the contract, he has accepted the purchaser...